2201267 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a non-citizen who had departed Australia. The applicant sought review of a decision not to grant the visa.

The primary legal issue before the Tribunal was whether the applicant satisfied the criterion for a protection visa that they must be a non-citizen in Australia at the time of the decision. The Tribunal also considered whether it was necessary to assess the substantive claims for protection given the applicant's location.

The Tribunal reasoned that section 36(2) of the *Migration Act 1958* (Cth) requires an applicant for a protection visa to be in Australia. Movement records indicated the applicant had left Australia in February 2023. The applicant, in response to the Tribunal's notification of this fact, acknowledged being outside Australia and having returned to Brazil due to personal circumstances. As the applicant was not in Australia, the Tribunal concluded they did not satisfy this essential criterion for a protection visa. Consequently, the Tribunal found it unnecessary to consider the applicant's substantive claims for protection.

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