2209672 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa by an applicant from Colombia. The dispute centred on whether the applicant met the eligibility criteria for the visa, specifically concerning their location.

The primary legal issue before the Tribunal was whether the applicant satisfied the criterion that they be a non-citizen in Australia for the purposes of section 36(2) of the *Migration Act 1958* (Cth). This criterion is a prerequisite for the grant of a protection visa under section 65(1) of the Act.

The Tribunal reasoned that a protection visa can only be granted if the applicant is physically present in Australia. Evidence indicated that the applicant had departed Australia in December 2023 and was therefore not in Australia. The Tribunal had invited the applicant to comment on this information, but no response was received. Consequently, the Tribunal was satisfied that the applicant did not meet the criterion of being in Australia and thus could not be granted a protection visa. The Tribunal affirmed the decision not to grant the protection visa.