2200911 (Refugee)

The applicant, a non-citizen who had previously been in Australia, sought a protection visa. The decision under review, which affirmed the refusal to grant this visa, was considered by the Administrative Appeals Tribunal. The dispute centred on whether the applicant met the fundamental eligibility criterion for a protection visa.

The primary legal issue before the Tribunal was whether the applicant satisfied the requirement under section 36(2) of the *Migration Act 1958* (Cth) that they be a non-citizen *in Australia* at the time of the decision. This criterion is a prerequisite for the grant of a protection visa.

The Tribunal reasoned that a protection visa can only be granted if the applicant is physically present in Australia. Evidence from movement records indicated that the applicant had departed Australia in March 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 criterion under section 36(2). As this threshold requirement was not met, the Tribunal found it unnecessary to consider the substantive grounds of the applicant's protection claims. The Tribunal affirmed the decision not to grant the applicant a protection visa.