1705313 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a non-citizen. The applicant was not physically present in Australia, having departed in October 2017, and therefore sought to challenge the decision not to grant the visa.

The primary legal issue before the Tribunal was whether the applicant satisfied the criterion for a protection visa that they must be a non-citizen in Australia. The Tribunal was also required to determine if the applicant's absence from Australia precluded the grant of the visa, irrespective of the merits of their substantive protection claims.

The Tribunal reasoned that section 36(2) of the *Migration Act 1958* (Cth) mandates that an applicant for a protection visa must be in Australia. Movement records indicated the applicant had departed Australia in October 2017. The Tribunal had invited the applicant to respond to this information and explain their departure, but no response was received. Consequently, the Tribunal was satisfied that the applicant was not in Australia, and therefore did not meet the prescribed criteria for the visa.

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