2110936 (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 of being in Australia.

The primary 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 *Migration Act 1958* (Cth), for the grant of a protection visa. 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 a protection visa can only be granted if the applicant is physically present in Australia. Movement records indicated that the applicant had left Australia in January 2024. The Tribunal had notified the applicant of this information and invited them to 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) of the Act. As this fundamental requirement was not met, the Tribunal concluded that it was unnecessary to consider the applicant's substantive claims for protection.

The Tribunal affirmed the decision not to grant the applicant a protection visa.