2013320 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant who had departed Australia. The dispute arose because Departmental records indicated the applicant was no longer in Australia, which is a prerequisite for the grant of such a 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 *Migration Act 1958* (Cth), for the grant of a protection visa. The Tribunal also had to determine if it was necessary to consider the applicant's substantive claims for protection given their absence from Australia.

The Tribunal reasoned that section 65(1) of the *Migration Act 1958* (Cth) requires a decision-maker to be satisfied that all prescribed criteria for a visa have been met. As section 36(2) mandates that an applicant for a protection visa must be in Australia, and movement records confirmed the applicant had departed Australia in November 2021, the Tribunal concluded the applicant did not meet this essential criterion. Despite an invitation to comment on this information, no response was received from the applicant. Consequently, the Tribunal found it unnecessary to assess the applicant's substantive claims for protection.

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