1900450 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a non-citizen. The applicant had left Australia, and the Tribunal's records indicated this departure. The dispute centred on whether the applicant met the eligibility criteria for a protection visa, specifically the requirement of being in Australia.

The primary legal issue before the Tribunal was whether the applicant satisfied the criterion under section 36(2) of the *Migration Act 1958* (Cth) that a protection visa applicant must be a non-citizen in Australia. This required the Tribunal to determine the applicant's physical location at the time of the decision.

The Tribunal reasoned that a protection visa can only be granted if the applicant is physically present in Australia, as stipulated by section 36(2) of the Act. Evidence from movement records indicated that the applicant had departed Australia in August 2019. The Tribunal communicated this information to the applicant, inviting comments by a specified date. As there was no response from the applicant or their representative, the Tribunal was satisfied that the applicant was not in Australia. Consequently, the applicant failed to meet the essential criterion for a protection visa.

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