1925307 (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 criteria for the visa, specifically the requirement of being in 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 required the Tribunal to determine the applicant's physical location at the time of the decision.

The Tribunal reasoned that a protection visa can only be granted if the applicant is in Australia. Movement records indicated the applicant had left Australia in August 2022. The Tribunal notified the applicant of this information and invited comment, but no response was received. Consequently, the Tribunal was satisfied the applicant was not in Australia, and therefore did not meet the criterion under section 36(2). As this fundamental requirement was not met, the Tribunal found it unnecessary to consider the substantive grounds of the applicant's protection claim. The Tribunal affirmed the decision not to grant the protection visa.