2309334 (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 criteria for the visa, specifically the requirement of being 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 required the Tribunal to determine the applicant's physical location at the time of the decision.

The Tribunal reasoned that a protection visa can only be granted if the applicant is in Australia, as stipulated by section 36(2) of the Act. Movement records indicated the applicant had left Australia in March 2024. The Tribunal notified the applicant of this information and invited them to comment or request an extension by 14 May 2024. As no response was received by the deadline, the Tribunal was satisfied that the applicant was not 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. Having reached this conclusion, it was unnecessary to consider the substantive grounds of the applicant's protection claim.

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