2112582 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a non-citizen. The dispute arose because the applicant had departed Australia, which raised questions about their eligibility for the visa.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa, specifically the requirement that the applicant must be a non-citizen *in* Australia. The Tribunal also had to determine whether it was necessary to consider the substantive grounds of the applicant's protection claim given their departure from the country.

The Tribunal reasoned that under section 36(2) of the *Migration Act 1958* (Cth), a protection visa can only be granted if the applicant is in Australia. Movement records indicated the applicant had departed Australia. The Tribunal had invited the applicant to comment on this information pursuant to section 424A of the Act, but received no response. Consequently, the Tribunal was satisfied that the applicant was not in Australia and therefore did not meet a fundamental criterion for the visa. As this criterion was not met, the Tribunal concluded it was unnecessary to assess the applicant's substantive claims for protection.

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