2015604 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant who had departed Australia. The dispute arose because movement records indicated the applicant was no longer in Australia, which is a prerequisite for the grant of a protection 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 the 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 under section 65(1) of the Act, a visa can only be granted if prescribed criteria are met. Section 36(2) specifically requires the applicant to be in Australia. As movement records showed the applicant had left Australia in April 2021, and the applicant provided no response to the Tribunal's invitation to comment on this information, the Tribunal was satisfied the applicant did not meet this essential criterion. Consequently, the Tribunal concluded it was unnecessary to consider the applicant's substantive claims for protection.

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