1909234 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant who was not physically present in Australia. The dispute centred on whether the applicant met the threshold requirement for the grant of such a visa.

The primary 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 reasoned that a protection visa can only be granted if the applicant is physically present within Australia. Evidence, including movement records, indicated that the applicant had departed Australia in October 2022. The Tribunal had notified the applicant of this information and invited comment, but remained satisfied that the applicant was not in Australia. Consequently, the Tribunal concluded that the applicant failed to meet the essential criterion under section 36(2) of the Act, rendering it unnecessary to consider the substantive grounds of the protection claim. The Tribunal affirmed the decision not to grant the protection visa.