2017496 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant who had departed Australia. The applicant sought protection in Australia, but the Tribunal was required to determine whether the applicant met the eligibility criteria for 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 *Migration Act 1958* (Cth). This section mandates that a protection visa can only be granted if the applicant is physically present within Australia.

The Tribunal's reasoning focused on the applicant's presence in Australia. Movement records indicated that the applicant had left Australia in June 2023. 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 fundamental requirement of section 36(2). As this criterion was not met, the Tribunal concluded it was unnecessary to assess the substantive grounds of the applicant's protection claim. The Tribunal affirmed the decision not to grant the applicant a protection visa.