1814124 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant who was not in Australia. The dispute centred on whether the applicant met the threshold requirement for the grant of such a visa.

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 reasoned that a protection visa can only be granted if the applicant is physically present within Australia. Evidence, including movement records, indicated that the applicant had departed Australia in June 2018. Despite the applicant's submission attempting to explain his departure, the Tribunal was satisfied that he was not in Australia at the time of the decision. Consequently, the applicant failed to meet the fundamental criterion under section 36(2) of the Act, rendering him ineligible for a protection visa. The Tribunal therefore affirmed the decision not to grant the visa, without needing to consider the substantive grounds of the protection claim.