2013215 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an individual 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 requirement under section 36(2) of the *Migration Act 1958* (Cth) that they be a non-citizen *in Australia* to be eligible for a protection visa.

The Tribunal reasoned that a protection visa can only be granted if the applicant is physically present in Australia. Evidence from movement records indicated that the applicant had left Australia in January 2021. 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 stipulated in section 36(2) of the Act. As this threshold 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 applicant a protection visa.