2112230 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an individual who had departed Australia. The dispute centred on whether the applicant met the eligibility criteria for the visa, specifically the requirement of being physically present within Australia.

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 a protection visa applicant must be a non-citizen in Australia. This required the Tribunal to determine the applicant's location at the time of the decision.

The Tribunal reasoned that a protection visa can only be granted if the applicant is in Australia, as stipulated by section 36(2) of the Act. Movement records indicated that the applicant had left Australia in March 2021. The Tribunal notified the applicant of this information and invited written comment by a specified date, but no response was received. Based on the available evidence, the Tribunal was satisfied that the applicant was not in Australia, and therefore did not meet the essential criterion for the visa. Consequently, it was unnecessary for the Tribunal to consider the substantive grounds of the applicant's protection claim.

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