2102943 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa by an applicant from India. 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 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 reasoned that under section 65(1) of the *Migration Act 1958* (Cth), a visa can only be granted if the prescribed criteria are met. The Tribunal's records indicated that the applicant had departed Australia in January 2024. 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 criterion was not met, the Tribunal concluded it was unnecessary to consider the substantive claims for protection.

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