2209470 (Refugee)

This matter concerned an application for a protection visa by an applicant who had departed Australia. The Administrative Appeals Tribunal, constituted by Member Mark Oakman, was required to determine whether the applicant met the criteria for the grant of a protection visa.

The central legal issue before the Tribunal was whether the applicant satisfied the criterion that they be a non-citizen *in Australia* at the time of the decision, as stipulated by section 36(2) of the *Migration Act 1958* (Cth). This criterion is a prerequisite for the grant of a protection visa under section 65(1) of the Act.

The Tribunal reasoned that movement records indicated the applicant had left Australia in September 2023. Consequently, the applicant was not physically present in Australia at the time of the decision. The Tribunal had notified the applicant of this information and invited comment, but no response was received. Based on these circumstances, the Tribunal was satisfied that the applicant did not meet the requirement of being in Australia, and therefore could not satisfy the criteria for a protection visa. As a result, the Tribunal found it unnecessary to consider the substantive claims made by the applicant for protection.

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