2003683 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a female citizen of Malaysia. The applicant arrived in Australia in October 2017 and her initial visa expired in January 2018. The dispute centred on whether the applicant continued to meet the criteria for a protection visa, specifically the requirement of being physically present in Australia.

The primary legal issue before the Tribunal was whether the applicant satisfied the criterion under section 36(2) of the *Migration Act 1958* (Cth) that she be a non-citizen in Australia. This criterion is a prerequisite for the grant of a protection visa under section 65(1) of the Act.

The Tribunal reasoned that a protection visa can only be granted if the applicant is in Australia. Departmental records indicated that the applicant had departed Australia in March 2022. The Tribunal notified the applicant of this information under section 424A of the Act, inviting a response, but received no reply. 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 essential criterion was not met, the Tribunal found it unnecessary to consider the substantive grounds of her protection claim. The Tribunal affirmed the decision not to grant the applicant a protection visa.