1909937 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a non-citizen who was not physically present in Australia. The applicant had previously been in Australia but departed in May 2019.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa, specifically the requirement that the applicant be a non-citizen *in Australia*. The Tribunal was also required to determine if the applicant's absence from Australia precluded the grant of such a visa.

The Tribunal reasoned that section 36(2) of the *Migration Act 1958* (Cth) mandates that an applicant for a protection visa must be in Australia. Movement records indicated the applicant had left Australia and was not present. Despite being notified of this information and invited to comment, the applicant did not respond. Consequently, the Tribunal was satisfied that the applicant was not in Australia, and therefore did not meet the essential criterion for a protection visa. As a result, 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.