2018510 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant who had departed Australia. The dispute centred on whether the applicant met the eligibility criteria for the visa, specifically the requirement of being present in Australia.

The primary legal issue before the Tribunal was whether the applicant satisfied the criterion under section 36(2) of the *Migration Act 1958* (Cth) that a protection visa applicant must be a non-citizen in Australia. This criterion is a prerequisite for the grant of a protection visa under section 65(1) of the Act.

The Tribunal reasoned that movement records indicated the applicant had left Australia in May 2023. The Tribunal notified the applicant of this information and invited comment, but ultimately was satisfied that the applicant was no longer in Australia. Consequently, the Tribunal concluded that the applicant did not meet the essential criterion of being in Australia, and therefore could not be granted a protection visa. As this threshold requirement was not met, the Tribunal found it unnecessary to consider the substantive claims for protection. The Tribunal affirmed the decision not to grant the applicant a protection visa.