2210430 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an individual who had departed Australia. The dispute centred on whether the applicant met the eligibility criteria for the visa, specifically the requirement of being physically present within Australia.

The primary legal issue before the Tribunal was whether the applicant satisfied the criterion stipulated in section 36(2) of the *Migration Act 1958* (Cth), which mandates that an applicant for a protection visa must be a non-citizen *in Australia*. This required the Tribunal to determine the applicant's location at the time of the decision.

The Tribunal's reasoning was based on movement records indicating the applicant had left Australia in October 2023. 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 essential criterion under section 36(2) for the grant of a protection visa. As this threshold criterion was not met, the Tribunal concluded it was unnecessary to assess the substantive grounds of the applicant's claim for protection. The Tribunal affirmed the decision not to grant the protection visa.