2013056 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant who had left Australia. The dispute centred on whether the applicant met the eligibility criteria for the visa, specifically the requirement of being present 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 a protection visa applicant must 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, as stipulated by section 36(2) of the Act. Movement records indicated that the applicant had departed Australia in July 2023. The Tribunal provided the applicant with an opportunity to comment on this information, as required by section 424A of the Act, by writing to him on 1 May 2024 and setting a deadline of 15 May 2024. The applicant failed to respond to this invitation or request an extension. 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 criterion 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 applicant a protection visa.