1824736 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an individual who had departed Australia. The dispute centred on whether the applicant met the eligibility criteria for the visa, specifically the requirement of being present in Australia.

The primary legal issue before the Tribunal was whether the applicant satisfied the criterion stipulated in section 36(2) of the *Migration Act 1958* (Cth), which requires an applicant for a protection visa to be a non-citizen *in Australia*. The Tribunal also had to determine if it was necessary to consider the applicant's substantive claims for protection, given the preliminary issue of their presence in Australia.

The Tribunal reasoned that a protection visa can only be granted if the applicant is physically present in Australia. Evidence from movement records indicated that the applicant had left Australia in August 2019. The Tribunal communicated this information to the applicant, inviting comment, but received no response. Consequently, the Tribunal was satisfied that the applicant was not in Australia and therefore did not meet the essential criterion under section 36(2) of the Act. As this criterion was not met, the Tribunal concluded it was unnecessary to assess the applicant's substantive claims for protection.

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