2205961 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant from Taiwan. The dispute concerned whether the applicant met the eligibility criteria for the visa.

The primary legal issue before the Tribunal was whether the applicant satisfied the criterion that they be a non-citizen in Australia, as stipulated by section 36(2) of the *Migration Act 1958* (Cth). This section mandates that a protection visa can only be granted if the applicant is physically present within Australia.

The Tribunal reasoned that a protection visa can only be granted if the applicant is in Australia. Movement records indicated that the applicant had left Australia in October 2023. 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 requirements of section 36(2) of the Act. 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.