1920661 (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 stipulated in s.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 the effect of the applicant's departure from Australia on their eligibility.

The Tribunal reasoned that a protection visa can only be granted if the applicant is in Australia, as mandated by s.36(2) of the Act. Movement records indicated that the applicant had left Australia in March 2020. The Tribunal had notified the applicant of this information and invited comments, but no response was received. Consequently, the Tribunal was satisfied that the applicant was not in Australia and therefore did not meet the essential criterion for the grant of a protection visa. As this threshold requirement was not met, the Tribunal deemed it 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.