2103503 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant who had departed Australia. The dispute arose because Department of Home Affairs records indicated the applicant was no longer in Australia, which is a prerequisite for granting a protection visa.

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. The Tribunal also considered whether it was necessary to assess the applicant's substantive claims for protection given their absence from Australia.

The Tribunal reasoned that section 36(2) of the Act mandates that an applicant must be in Australia to be eligible for a protection visa. As movement records confirmed the applicant had left Australia in May 2022 and had not provided any response or requested an extension of time after being notified of this fact by the Tribunal, the Tribunal was satisfied the applicant was not in Australia. Consequently, the applicant failed to meet this essential criterion, rendering it unnecessary to consider the merits of their protection claims. The Tribunal affirmed the decision not to grant the protection visa.