2213396 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a citizen of the Philippines. The applicant had departed Australia and did not hold a visa permitting re-entry. The Tribunal sought comment from the applicant regarding evidence indicating his absence from Australia, but no response was received.

The central legal issue before the Tribunal was whether the applicant met the criteria for a protection visa, specifically the requirement that the applicant must be a non-citizen *in* Australia. The Tribunal was required to determine if the applicant's physical presence within Australia at the time of decision was a jurisdictional fact for the grant of the visa.

The Tribunal reasoned that section 36(2) of the *Migration Act 1958* (Cth) mandates that an applicant for a protection visa must be in Australia. Movement records indicated the applicant had left Australia in September 2023 and had not returned. As the applicant had not responded to the Tribunal's invitation to comment on this evidence, the Tribunal was satisfied that the applicant was not in Australia. Consequently, the applicant failed to satisfy this essential criterion for the grant of a protection visa.

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