1620977 (Refugee)

This matter concerned an application for a protection visa by an applicant from Taiwan. The applicant had departed Australia in September 2017. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant met the criteria for the grant of a protection visa.

The primary legal issue before the Tribunal was whether the applicant satisfied the criterion that they be a non-citizen in Australia at the time of the decision, as stipulated by section 36(2) of the *Migration Act 1958* (Cth). This section is a mandatory requirement for the grant of a protection visa.

The Tribunal reasoned that a protection visa can only be granted if the applicant is physically present in Australia. The Department of Immigration's records indicated the applicant had left Australia in September 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 meet the criterion under section 36(2). As this criterion was not met, the Tribunal concluded it was unnecessary to consider the substantive grounds of the protection claim. The Tribunal affirmed the decision not to grant the applicant a protection visa.