2100975 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant who had previously left 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 they 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 departed Australia in July 2021. 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 under section 36(2). As this criterion was not satisfied, the Tribunal concluded it was unnecessary to consider the substantive claims for protection. The Tribunal affirmed the decision not to grant the protection visa.