1815502 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant who had departed Australia. The dispute centred on whether the applicant met the eligibility criteria for the visa, specifically the requirement to be physically present within Australia.

The primary legal issue before the Tribunal was whether the applicant satisfied the criterion under section 36(2) of the *Migration Act 1958* (Cth) that they be a non-citizen in Australia. This criterion is a prerequisite for the grant of a protection visa.

The Tribunal reasoned that a protection visa can only be granted if the applicant is in Australia. Movement records indicated that the applicant had left Australia in June 2021. 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 was not in Australia. Consequently, the applicant failed to satisfy the criterion under section 36(2) of the Act, and the Tribunal did not need to consider the substantive grounds of the protection claim.

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