2016139 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an individual who had departed Australia. The core of the dispute concerned the applicant's eligibility for the visa, given their absence from the country.

The primary legal issue before the Tribunal was whether the applicant met the criterion stipulated in section 36(2) of the *Migration Act 1958* (Cth), which requires an applicant for a protection visa to be a non-citizen who is in Australia. The Tribunal also had to determine the effect of the applicant's departure from Australia on their ability to satisfy this criterion.

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 May 2021. The Tribunal notified the applicant of this information and invited them to provide comments, but no response was received. Consequently, the Tribunal was satisfied that the applicant was not in Australia and therefore did not meet the essential requirement of section 36(2) of the Act. As this 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.