1927175 (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 present in Australia.

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 also had to determine if it was necessary to consider the applicant's substantive claims for protection given the preliminary eligibility issue.

The Tribunal reasoned that a protection visa can only be granted if the applicant is physically present in Australia. Movement records indicated that the applicant had departed Australia in December 2021. The Tribunal notified the applicant of this information and invited comment, but no response was received. Consequently, the Tribunal was satisfied that the applicant was not in Australia, and therefore did not meet the criterion under section 36(2). As this criterion was not met, the Tribunal concluded it was unnecessary to assess the applicant's substantive claims for protection. The Tribunal affirmed the decision not to grant the protection visa.