2217383 (Refugee)

The Administrative Appeals Tribunal, with Member Wendy Banfield presiding, considered an application for a protection visa. The applicant sought this visa, but the core of the dispute revolved around the applicant's physical presence in Australia, which is a prerequisite 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* for the purposes of section 36(2) of the *Migration Act 1958* (Cth). This section stipulates that a protection visa may only be granted if the applicant meets this geographical requirement.

The Tribunal's reasoning focused on the evidence of the applicant's movement records, which indicated that the applicant had departed Australia in September 2023. Consequently, the Tribunal was satisfied that the applicant was not physically present in Australia. The Tribunal had notified the applicant of this information and invited comment, but no response was received. As the applicant did not satisfy the criterion of being in Australia, the Tribunal concluded that a protection visa could not be granted, rendering it unnecessary to consider the substantive claims for protection. The Tribunal affirmed the decision not to grant the protection visa.