2011804 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant from Taiwan. The dispute centred on whether the applicant met the eligibility criteria for the visa, specifically the requirement to be physically 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 the applicant's departure from Australia rendered them ineligible for the visa.

The Tribunal reasoned that section 65(1) of the *Migration Act 1958* (Cth) mandates that a visa can only be granted if the prescribed criteria are met. It found, based on movement records, that the applicant had left Australia in April 2021. After notifying the applicant of this information and inviting comment, the Tribunal was satisfied that the applicant was no longer in Australia. Consequently, the Tribunal concluded that the applicant failed to satisfy the criterion in section 36(2) and was therefore ineligible for a protection visa.

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