2105936 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa by an applicant who had departed Australia. The Tribunal, constituted by Member Brendan Darcy, was tasked with determining whether the applicant met the criteria for the visa.

The central legal issue before the Tribunal was whether the applicant satisfied the criterion that they be a non-citizen *in* Australia, as stipulated by section 36(2) of the relevant Act. This requirement is a prerequisite for the grant of a protection visa under section 65(1).

The Tribunal's reasoning focused on the applicant's physical presence in Australia. Movement records indicated that the applicant had left Australia in April 2022. The Tribunal notified the applicant of this information and invited comment, but received no response. Consequently, the Tribunal was satisfied that the applicant was not in Australia at the time of the decision. As this fundamental criterion was not met, the Tribunal concluded that it was unnecessary to consider the substantive claims for protection. The Tribunal affirmed the decision not to grant the protection visa.