1926730 (Refugee)

This matter concerned an application for a protection visa by an applicant who had departed Australia. The decision-maker, Nicole Burns, sitting as a member of the Tribunal, was required to determine whether to affirm the original decision not to grant the visa.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa, specifically the requirement that the applicant be a non-citizen *in* Australia. The Tribunal also considered whether it was necessary to assess the substantive grounds of the protection claim given the applicant's absence from Australia.

The Tribunal reasoned that under section 36(2) of the relevant Act, a protection visa can only be granted if the applicant is in Australia. Movement records indicated the applicant had left Australia in July 2022. The Tribunal notified the applicant of this information and invited comment, but no response was received. Consequently, the Tribunal was satisfied that 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 concluded it was unnecessary to consider the applicant's substantive case for protection.

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