1730293 (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 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 also had to determine if it was necessary to consider the applicant's substantive claims for protection, given the preliminary issue of their location.

The Tribunal reasoned that a protection visa can only be granted if the applicant is physically present in Australia, as mandated by section 36(2) of the Act. Evidence from the Department of Immigration indicated that the applicant had departed Australia in July 2018. Despite being notified of this information and invited to respond, the applicant failed to provide any comment. 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.