1517601 (Refugee)

The Administrative Appeals Tribunal considered an application for a Protection visa by an applicant from India. The dispute arose because the Department of Immigration's records indicated the applicant had departed Australia, which raised a question about their eligibility for the visa.

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 a Protection visa can only be granted if the applicant is physically present in Australia. The Department's movement records indicated the applicant had left Australia in October 2017. The Tribunal notified the applicant of this information and invited comment, but no response was received. Consequently, the Tribunal was satisfied that the applicant was not in Australia and therefore did not satisfy the fundamental requirement of section 36(2) of the Act. As a result, it was unnecessary for the Tribunal to consider the merits of the applicant's substantive claims for protection.

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