2100820 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa by an applicant from India. The applicant had departed Australia, and the Tribunal's records indicated this absence. The core of the dispute revolved around whether the applicant met the fundamental eligibility criterion for a protection visa, which requires the applicant to be 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 they be a non-citizen in Australia. This criterion is a prerequisite for the grant of a protection visa. The Tribunal also had to determine the procedural implications of the applicant's departure from Australia and their subsequent failure to respond to the Tribunal's invitation to comment on this critical fact.

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 satisfied. As section 36(2) requires the applicant to be in Australia, and movement records confirmed the applicant had left in July 2022, the applicant did not meet this essential criterion. The Tribunal had notified the applicant of this information and invited a response, which was not provided. Consequently, the Tribunal was satisfied that the applicant was not in Australia and therefore ineligible for a protection visa, rendering it unnecessary to assess the substantive grounds of their protection claim.

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