2009002 (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.

The primary legal issue before the Tribunal was whether the applicant satisfied the criterion that they be a non-citizen *in* Australia, as stipulated by section 36(2) of the relevant Act. This required the Tribunal to determine the applicant's physical presence within Australia at the time of the decision.

The Tribunal reasoned that a protection visa can only be granted if the applicant is physically present in Australia. Movement records indicated the applicant had left Australia in January 2021. The Tribunal notified the applicant of this information and invited comment, but received no response. Consequently, the Tribunal was satisfied that the applicant was not in Australia and therefore did not meet the criterion under section 36(2). The Tribunal affirmed the decision not to grant the protection visa, finding it unnecessary to consider the substantive grounds for the protection claim.