1906982 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant from India. The applicant was not physically present in Australia at the time of the decision. The Tribunal was tasked with determining whether the applicant met the criteria for the grant of a protection visa.

The central legal issue before the Tribunal was whether the applicant satisfied the criterion that they be a non-citizen *in Australia* for the purposes of section 36(2) of the *Migration Act 1958* (Cth). This section prescribes that a protection visa may only be granted if the applicant is within Australia.

The Tribunal reasoned that under section 65(1) of the *Migration Act 1958* (Cth), a visa can only be granted if the prescribed criteria are met. It found, based on movement records, that the applicant had departed Australia in October 2023 and was therefore not in Australia. The Tribunal had notified the applicant of this information and invited comment, but no response was received. Consequently, the Tribunal concluded that the applicant did not satisfy the criterion of being in Australia as required by section 36(2). As this threshold criterion was not met, the Tribunal determined it was unnecessary to consider the substantive claims for protection.

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