2305158 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant who had left Australia. The Tribunal, constituted by Member Victoria Price, was tasked with determining whether the applicant met the criteria for the grant of a protection visa.

The central 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 Act, which is a prerequisite for the grant of a protection visa. The Tribunal also considered whether it was necessary to assess the applicant's substantive claims for protection given the preliminary issue.

The Tribunal reasoned that section 65(1) of the Act mandates that a visa may only be granted if the prescribed criteria are satisfied. It noted that section 36(2) specifically requires an applicant for a protection visa to be in Australia. Movement records indicated the applicant had departed Australia in October 2023. The Tribunal provided the applicant with an opportunity to comment on this information, 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 criterion was not met, the Tribunal concluded it was unnecessary to consider the applicant's substantive claims for protection.

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