2009075 (Refugee)

This matter concerned an application for a Protection visa by a non-citizen who had departed Australia. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant met the 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* at the time of decision, as stipulated by section 36(2) of the relevant Act. The Tribunal also considered whether it was necessary to assess the applicant's substantive claims for protection given their absence from Australia.

The Tribunal reasoned that section 65(1) of the Act mandates that a visa can only be granted if prescribed criteria are met, and section 36(2) specifically requires the applicant to be 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 received no response. Based on the evidence of the applicant's departure and the lack of response, the Tribunal was satisfied the applicant was not in Australia, and therefore did not meet the criterion under section 36(2). Consequently, the Tribunal concluded it was unnecessary to consider the substantive grounds of the protection claim.

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