2105772 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a non-citizen. The applicant had previously been in Australia but had departed the country. The core of the dispute was whether the applicant met the eligibility criteria for a protection visa, specifically the requirement of being physically present within Australia.

The primary legal issue before the Tribunal was to determine if the applicant satisfied the criterion that they be a non-citizen *in Australia* for the purposes of section 36(2) of the *Migration Act 1958* (Cth), which is a prerequisite for the grant of a protection visa. The Tribunal also had to consider whether the applicant's departure from Australia and lack of a re-entry visa impacted their eligibility.

The Tribunal reasoned that section 36(2) of the Act mandates that an applicant for a protection visa must be in Australia. Evidence from movement records indicated the applicant had left Australia in February 2022. The Tribunal notified the applicant of this information and invited comment. The applicant responded by email, confirming their departure for Malaysia and acknowledging they did not possess a visa permitting re-entry. Based on this confirmation, the Tribunal was satisfied that the applicant was not in Australia, and therefore did not meet the essential criterion under section 36(2). Consequently, the Tribunal found it 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.