2003140 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an individual who was not physically present in Australia. The dispute centred on whether the applicant met the threshold requirements for the 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 in Australia. Evidence of movement records indicated that the applicant had departed Australia in April 2020. The Tribunal notified the applicant of this information and invited comment, but received no response. 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 threshold requirement was not met, 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.