2016117 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant who had departed Australia. The Tribunal was required to determine whether the applicant met the prescribed criteria for the grant of a protection visa.

The central legal issue before the Tribunal was whether the applicant, who had left Australia, satisfied the criterion that they must be a non-citizen *in* Australia to be eligible for a protection visa, as stipulated by section 36(2) of the *Migration Act 1958* (Cth).

The Tribunal reasoned that section 36(2) of the Act mandates that an applicant for a protection visa must be physically present in Australia. Movement records indicated that the applicant had departed Australia in February 2022. 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 essential criterion for the grant of a protection visa. The Tribunal concluded that it was unnecessary to consider the substantive claims for protection. The Tribunal affirmed the decision not to grant the applicant a protection visa.