1807076 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa by a Sri Lankan national. The applicant had departed Australia, and the Tribunal was reviewing a decision not to grant the visa.

The primary legal issue before the Tribunal was whether the applicant met the criterion for a protection visa that they must be a non-citizen *in* Australia. This criterion is stipulated by section 36(2) of the *Migration Act 1958* (Cth), which requires the decision-maker to be satisfied that the prescribed criteria for the visa have been met under section 65(1) of the Act.

The Tribunal reasoned that movement records indicated the applicant had left Australia in March 2019. Consequently, the applicant was not physically present in Australia, a fundamental requirement for the grant of a protection visa. The Tribunal notified the applicant of this information and invited comment, but received no response. Based on the evidence of the applicant's departure and the lack of any response, the Tribunal was satisfied that the applicant did not meet the criterion of being in Australia. Therefore, it was unnecessary to consider the substantive grounds of the applicant's protection claim.

The Tribunal affirmed the decision not to grant the applicant a protection visa.