2218558 (Refugee)

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

The primary legal issue before the Tribunal was whether the applicant satisfied the criterion under section 36(2) of the *Migration Act 1958* (Cth) that they be a non-citizen in Australia. This criterion is a prerequisite for the grant of a protection visa.

The Tribunal reasoned that a protection visa can only be granted if the applicant is physically present in Australia. Movement records indicated the applicant had left Australia in May 2023. Despite the applicant's representative expressing concerns about the applicant's whereabouts and potential harm, and requesting time to investigate, the applicant failed to appear at a scheduled hearing. The Tribunal was satisfied, based on the available evidence and the applicant's non-appearance, that the applicant was no longer in Australia. Consequently, the Tribunal concluded that the applicant did not meet the essential criterion of being in Australia and therefore could not be granted a protection visa. The Tribunal affirmed the decision not to grant the visa, finding it unnecessary to consider the substantive claims for protection.