1621875 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant from India. The applicant was not physically present in Australia at the time of the Tribunal's decision. The dispute centred on whether the applicant met the eligibility criteria for 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, as stipulated by section 36(2) of the *Migration Act 1958* (Cth), which is a prerequisite for the grant of a protection visa under section 65(1) of the Act.

The Tribunal reasoned that a protection visa can only be granted if the applicant is in Australia. Evidence from movement records indicated that the applicant had departed Australia on 8 January 2018 and was not present in the country. The Tribunal had notified the applicant of this information and invited comment, but no response was received. Consequently, the Tribunal was satisfied that the applicant did not meet the fundamental requirement of being in Australia, and therefore did not satisfy the prescribed criteria for a protection visa. 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.