1909189 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a non-citizen. The dispute centred on whether the applicant met the eligibility criteria for the 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 they be a non-citizen in Australia. This criterion is a prerequisite for the grant of a protection visa under section 65(1) of the Act.

The Tribunal reasoned that a protection visa can only be granted if the applicant is physically present in Australia. Evidence from movement records indicated that the applicant had departed Australia in May 2020. Despite the Tribunal’s attempts to contact the applicant to address this information, including correspondence returned as undeliverable, the Tribunal was satisfied that the applicant was not in Australia. Consequently, the Tribunal concluded that the applicant failed to meet the requirements of section 36(2) and therefore could not be granted a protection visa. The Tribunal found it unnecessary to consider the substantive grounds of the applicant's protection claim.

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