2216620 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a non-citizen who had departed Australia. The applicant's claim for a protection visa was under review by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the criterion for a protection visa that they must be a non-citizen in Australia. This criterion is stipulated by section 36(2) of the *Migration Act 1958* (Cth), which mandates that a visa may only be granted if the prescribed criteria are satisfied, including the applicant being physically present in Australia.

The Tribunal reasoned that a protection visa can only be granted to an applicant who is in Australia. Evidence from movement records indicated that 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 requirements of section 36(2) of the *Migration Act 1958* (Cth). As this threshold criterion was not met, the Tribunal determined it was unnecessary to consider the substantive grounds of the applicant's protection claim.

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