2106836 (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 criteria for a protection visa, specifically the requirement of being 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 was in light of evidence suggesting the applicant had departed Australia.

The Tribunal reasoned that under section 65(1) of the Act, a visa can only be granted if the prescribed criteria are met. The Tribunal noted that movement records indicated the applicant had left Australia in January 2024. Consequently, the applicant could not satisfy the criterion of being in Australia under section 36(2). The Tribunal had invited the applicant to comment on this information, but no response was received. As the applicant was not in Australia, the Tribunal concluded it was unnecessary to consider the substantive grounds of the protection claim.

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