1731611 (Refugee)

The applicant sought a protection visa. The Administrative Appeals Tribunal affirmed the decision not to grant the visa.

The primary legal issue before the Tribunal was whether the applicant satisfied the criterion for a protection visa that the applicant must be a non-citizen in Australia, as stipulated by section 36(2) of the *Migration Act 1958* (Cth).

The Tribunal reasoned that a protection visa can only be granted if the applicant is physically present in Australia. Movement records indicated the applicant had departed Australia in May 2019. The Tribunal communicated this information to the applicant, inviting comment, but received no response. Based on the evidence of the applicant's departure and the lack of any response, the Tribunal was satisfied that the applicant was not in Australia. Consequently, the applicant failed to meet the criterion under section 36(2) of the Act, rendering it unnecessary to consider the substantive grounds of the protection claim.

The Tribunal affirmed the decision not to grant the applicant a protection visa.