2208495 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa by a citizen of Brazil. The applicant had departed Australia, and the Tribunal was reviewing 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.

The Tribunal reasoned that under section 65(1) of the *Migration Act 1958* (Cth), a visa can only be granted if the prescribed criteria are met. Section 36(2) of the Act specifies that a criterion for a protection visa is that the applicant is a non-citizen in Australia. Movement records indicated the applicant had left Australia in January 2024. The Tribunal notified the applicant of this information and invited comment, but no response was received. Consequently, the Tribunal was satisfied that the applicant was not in Australia and therefore did not meet the criterion under section 36(2).

The Tribunal affirmed the decision not to grant the applicant a protection visa, finding it unnecessary to consider the substantive claims for protection given the applicant's absence from Australia.