2218860 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant 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 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 a protection visa applicant 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 reasoned that a protection visa can only be granted if the applicant is in Australia. 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. Based on the available evidence and the lack of response, the Tribunal was satisfied that the applicant was not in Australia. Consequently, the applicant failed to meet the essential criterion under section 36(2) of the Act, rendering it unnecessary to consider the substantive grounds of the protection claim.

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