2015359 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa by an applicant from Fiji. The core dispute revolved around the applicant's presence in Australia, which is a prerequisite for the grant of a protection visa.

The Tribunal was required to determine whether the applicant satisfied the criterion that they be a non-citizen in Australia, as stipulated by section 36(2) of the *Migration Act 1958* (Cth). This section mandates that a protection visa can only be granted if the applicant is physically present within Australia.

The Tribunal's reasoning was based on movement records indicating the applicant had departed Australia in August 2022. 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 essential criterion under section 36(2). As this criterion was not met, the Tribunal found it unnecessary to consider the substantive claims for protection. The Tribunal affirmed the decision not to grant the applicant a protection visa.