1716053 (Refugee)

The Administrative Appeals Tribunal, with Member Michael Judd presiding, considered an application for a protection visa. The applicant sought review of a decision not to grant this visa. The core of the dispute revolved around the applicant's physical presence in Australia, which was a prerequisite for the grant of a protection visa.

The primary legal issue before the Tribunal was whether the applicant satisfied the 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 the grant of the visa, rendering further consideration of their substantive claims unnecessary.

The Tribunal's reasoning was grounded in section 36(2) of the *Migration Act 1958* (Cth), which stipulates that a protection visa can only be granted if the applicant is in Australia. Movement records indicated that the applicant had departed Australia on 30 December 2017. The Tribunal notified the applicant of this information and invited comment, but received no response. Consequently, the Tribunal was satisfied that the applicant was not in Australia and therefore did not meet the essential criterion under section 36(2). As this fundamental requirement was not met, the Tribunal concluded it was unnecessary to assess the applicant's substantive claims for protection. The Tribunal affirmed the decision not to grant the protection visa.