2109392 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa by an applicant from India. The dispute arose because Department of Home Affairs movement records indicated the applicant had departed Australia in July 2022.

The primary legal issue before the Tribunal was whether the applicant satisfied the criterion for a protection visa that they must be a non-citizen in Australia, as stipulated by section 36(2) of the *Migration Act 1958* (Cth).

The Tribunal reasoned that a protection visa can only be granted if the applicant is physically present in Australia. As the movement records showed the applicant had left Australia and had not provided any response or requested an extension of time after being notified of this fact by the Tribunal, the Tribunal was satisfied the applicant was not in Australia. Consequently, the applicant failed to meet the essential criterion under section 36(2) of the Act, rendering it unnecessary to consider the substantive grounds of the protection claim. The Tribunal affirmed the decision not to grant the protection visa.