1720540 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a non-citizen. The applicant had previously been in Australia but had departed the country. The core of the dispute concerned whether the applicant met the eligibility requirements for a protection visa, specifically the requirement of being physically present in Australia.

The primary legal issue before the Tribunal was whether the applicant satisfied the criterion stipulated in section 36(2) of the *Migration Act 1958* (Cth), which mandates that an applicant for a protection visa must be a non-citizen in Australia. The Tribunal was required to determine the applicant's location based on available evidence and assess if this satisfied the statutory requirement.

The Tribunal's reasoning focused on the jurisdictional prerequisite of the applicant's presence in Australia. Movement records indicated that the applicant had left Australia in May 2019. 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) of the Act. As this essential criterion was not met, the Tribunal concluded 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.