2214607 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa by a citizen of Pakistan. The applicant had previously been in Australia but had departed the country. The Tribunal was tasked with determining whether the applicant met the criteria for the grant of a protection visa.

The central legal issue before the Tribunal was whether the applicant satisfied the requirement under section 36(2) of the *Migration Act 1958* (Cth) that a protection visa applicant must be a non-citizen *in Australia*. The Tribunal also considered whether it was necessary to assess the applicant's substantive claims for protection given their presence outside Australia.

The Tribunal reasoned that a protection visa can only be granted if the applicant is physically present in Australia. Movement records indicated that the applicant had left Australia in July 2023 and did not possess a visa that would permit their return. 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) of the Act. As this threshold requirement was not met, the Tribunal concluded it was unnecessary to consider the merits of the applicant's protection claims.

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