2001393 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant who had departed Australia. The core of the dispute concerned whether the applicant met the threshold requirement of being physically present within Australia to be eligible for a protection visa.

The Tribunal was required to determine if the applicant satisfied the criteria for a protection visa, specifically the requirement under section 36(2) of the *Migration Act 1958* (Cth) that the applicant be a non-citizen in Australia. The Tribunal also had to consider whether the applicant had a reasonable excuse for failing to attend a scheduled hearing.

The Tribunal reasoned that a fundamental criterion for a protection visa is that the applicant must be in Australia. Movement records indicated the applicant had left Australia in January 2023. Despite the applicant's subsequent email claiming he was in hospital and unconscious during the scheduled hearing, the Tribunal found no sufficient evidence to support this claim, noting the lack of detail and supporting documentation. Consequently, the Tribunal concluded the applicant had not provided a reasonable excuse for his non-attendance and was not in Australia. As being in Australia is a prerequisite for the grant of a protection visa, the Tribunal found the applicant did not satisfy this essential criterion.

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