2217160 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa by an applicant from Tonga. The applicant had left Australia, and the Tribunal was reviewing a decision not to grant the visa.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa, specifically the requirement that the applicant must be a non-citizen *in* Australia at the time of the decision.

The Tribunal reasoned that under section 36(2) of the relevant Act, a protection visa can only be granted if the applicant is physically present in Australia. Movement records indicated the applicant had departed Australia in January 2024. The Tribunal notified the applicant of this information and invited a response, 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). As this essential criterion was not met, the Tribunal found it 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.