1904240 (Refugee)

The Administrative Appeals Tribunal (AAT) considered an application for a protection visa made by an applicant who had departed Australia. The core dispute revolved around whether the applicant met the fundamental criterion of being physically present in Australia to be eligible for a protection visa.

The legal issue before the Tribunal was whether the applicant satisfied the requirement under section 36(2) of the *Migration Act 1958* (Cth) that they be a non-citizen in Australia. This criterion is a prerequisite for the grant of a protection visa.

The Tribunal reasoned that movement records indicated the applicant had left Australia in February 2022. Consequently, the Tribunal attempted to contact the applicant to invite comment on this information, first by email to their authorised recipient address on 11 July 2022, which failed to deliver. A second attempt was made on 24 August 2022 with a slightly varied email address, which also failed. Finally, an attempt to contact the applicant by telephone to their authorised recipient number on 29 August 2022 was unsuccessful. Based on these unsuccessful attempts to communicate, the Tribunal was satisfied that the applicant was not in Australia. As a result, the applicant did not meet the criterion under section 36(2) of the Act, rendering them ineligible for a protection visa, regardless of the merits of their substantive protection claims. The Tribunal affirmed the decision not to grant the applicant a protection visa.