2302843 (Refugee)

This matter concerned an application for a protection visa by an applicant who had departed Australia. The Administrative Appeals Tribunal, constituted by Member John Kotsifas, was required to determine whether the applicant met the criteria for the grant of a protection visa.

The primary legal issue before the Tribunal was whether the applicant satisfied the criterion that they be a non-citizen *in Australia* for the purposes of section 36(2) of the *Migration Act 1958* (Cth). This section stipulates that a protection visa may only be granted if the applicant is physically present in Australia.

The Tribunal considered movement records which indicated the applicant had left Australia in September 2023. The Tribunal notified the applicant of this information and invited them to 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 Tribunal concluded that the applicant did not meet the fundamental criterion of being in Australia, rendering it unnecessary to consider the substantive grounds of their protection claim. The Tribunal affirmed the decision not to grant the protection visa.