2308311 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant from India. The dispute arose because the applicant had departed Australia after lodging their application.

The primary legal issue before the Tribunal was whether the applicant met the criterion for a protection visa that they must be a non-citizen in Australia at the time of the decision. This criterion is stipulated by section 36(2) of the *Migration Act 1958* (Cth), which requires the decision maker to be satisfied that the prescribed criteria for the visa have been met under section 65(1) of the Act.

The Tribunal reasoned that movement records indicated the applicant had left Australia in July 2023. The Tribunal notified the applicant of this information and invited comment, but no response was received by the date of the decision. Consequently, the Tribunal was satisfied that the applicant was not in Australia, and therefore did not meet the fundamental requirement of section 36(2) for the grant of a protection visa. As this essential criterion was not met, the Tribunal found it unnecessary to consider the substantive grounds of the applicant's claim for protection.

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