1606579 (Refugee)

This matter concerned an application for a protection visa by an applicant from India. The Administrative Appeals Tribunal (AAT) was required to determine 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, as stipulated by section 36(2) of the *Migration Act 1958* (Cth). This section mandates that a protection visa can only be granted if the applicant is physically present in Australia.

The Tribunal considered evidence from the Department of Immigration's movement records, which indicated that the applicant had departed Australia in March 2017. The Tribunal notified the applicant of this information and invited comment, but no response was received. Based on this, the Tribunal was satisfied that the applicant was not in Australia and therefore did not meet the essential criterion under section 36(2) of the Act. Consequently, the Tribunal concluded that 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.