2113967 (Refugee)

This matter concerned an application for a protection visa by an applicant who had departed Australia. The decision under review was made by the Administrative Appeals Tribunal (AAT), with Member Catherine Wall presiding.

The primary legal issue before the AAT was whether the applicant satisfied the criteria for a protection visa, specifically the requirement that the applicant be a non-citizen *in* Australia.

The AAT reasoned that under section 36(2) of the relevant Act, 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 September 2023. The AAT notified the applicant of this information and invited comment, but the applicant did not respond. Consequently, the AAT was satisfied that the applicant was not in Australia and therefore did not meet the criterion under section 36(2). As this threshold requirement was not met, the AAT found it unnecessary to consider the substantive grounds of the applicant's protection claim.

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