1710750 (Refugee)

The Administrative Appeals Tribunal, with Member Paul Windsor presiding, considered an application for a protection visa by an applicant from India. The core dispute revolved around the applicant's eligibility for the visa, given their physical location.

The primary legal issue before the Tribunal was whether the applicant met the prescribed criteria for a protection visa, specifically the requirement that the applicant be a non-citizen *in Australia*. The Tribunal was also required to determine if the applicant's absence from Australia precluded them from satisfying this criterion.

The Tribunal reasoned that section 36(2) of the *Migration Act 1958* (Cth) mandates that an applicant must be in Australia to be granted a protection visa. Evidence from movement records indicated that the applicant had departed Australia on 5 December 2017 and was therefore not physically present in the country. Despite being notified of this information and invited to comment, the applicant did not respond. Consequently, the Tribunal was satisfied that the applicant did not meet the fundamental criterion of being in Australia, rendering it unnecessary to assess the substantive grounds of their protection claim. The Tribunal affirmed the decision not to grant the protection visa.