1826195 (Refugee)

The Administrative Appeals Tribunal (AAT) considered an application for a protection visa made by a citizen of Nepal. The applicant had arrived in Australia on a temporary visa in June 2011 and became an unlawful non-citizen in October 2014. He was placed in immigration detention in August 2018, from which he applied for a protection visa. The Tribunal was required to determine whether the applicant met the criteria for a protection visa.

The central 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 considered the applicant's failure to attend a scheduled hearing, which led to the Tribunal proceeding to make a decision under section 362B of the Act.

The Tribunal reasoned that a protection visa can only be granted if the applicant is physically present in Australia. Evidence indicated that the applicant had voluntarily departed Australia on 25 September 2018, prior to the scheduled hearing. As the applicant was no longer in Australia at the time of the decision, he did not satisfy the criterion under section 36(2) of the Act. Consequently, the Tribunal found it unnecessary to consider the substantive grounds of the applicant's protection claims. The Tribunal affirmed the decision not to grant the applicant a protection visa.