2109817 (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 to be physically present within Australia.

The primary legal issue before the Tribunal was whether the applicant satisfied the criterion stipulated in section 36(2) of the *Migration Act 1958* (Cth), which requires an applicant for a protection visa to be a non-citizen *in Australia*. The Tribunal was also required to determine if the applicant's departure from Australia impacted their eligibility.

The Tribunal reasoned that a protection visa can only be granted if the applicant is in Australia, as mandated by section 36(2) of the Act. Movement records indicated that the applicant had left Australia in January 2022. The Tribunal had notified the applicant of this information and invited comment, but ultimately concluded that the applicant was not in Australia. Consequently, the Tribunal found that the applicant did not satisfy the essential criterion of being in Australia and therefore could not be granted a protection visa. The Tribunal affirmed the decision not to grant the protection visa.