1723432 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a non-citizen. The dispute centred on whether the applicant met the eligibility criteria for the 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 requires an applicant for a protection visa to 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 consideration of their substantive protection claims unnecessary.

The Tribunal reasoned that a protection visa can only be granted if the applicant is in Australia, as per section 36(2) of the Act. Movement records indicated that the applicant had departed Australia in December 2020. 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 prescribed criteria for a protection visa. The Tribunal affirmed the decision not to grant the applicant a protection visa.