2017414 (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 criteria for the grant of a protection visa.

The central 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 relevant Act. This criterion is a prerequisite for the grant of a protection visa.

The Tribunal reasoned that a protection visa can only be granted to an applicant who is physically present in Australia. Movement records indicated that the applicant had left Australia in June 2022. The Tribunal notified the applicant of this information and invited comment, but received no response. Consequently, the Tribunal was satisfied that the applicant was not in Australia and therefore did not meet the essential criterion under section 36(2). 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.