2207275 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an individual who was not in Australia. The dispute centred on whether the applicant met the threshold requirement for the grant of such a 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 establishes that a protection visa may only be granted if the applicant is physically present within Australia.

The Tribunal's reasoning was based on movement records indicating the applicant had departed Australia in July 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 essential criterion under section 36(2) for the grant of a protection visa. As this preliminary requirement was not met, the Tribunal deemed it unnecessary to consider the substantive claims for protection.

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