1601038 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa by an applicant from India. The dispute centred on whether the applicant met the eligibility criteria for the visa, specifically the requirement of being present 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 a protection visa applicant must 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. Movement records indicated that the applicant had departed Australia on 16 February 2018. The Tribunal notified the applicant's agent of this information and invited comment. The agent responded that he had been unable to contact the applicant and could not provide any explanation for her departure or current whereabouts. The Tribunal accepted the movement records as evidence that the applicant was not in Australia and therefore concluded that she did not satisfy the criterion under section 36(2). Consequently, it was unnecessary for the Tribunal to consider the substantive grounds of the applicant's protection claim.

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