2306110 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant from Tonga. The dispute centred on whether the applicant met the eligibility criteria for the visa, specifically the requirement of being physically present in Australia.

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

The Tribunal reasoned that a protection visa can only be granted if the applicant is in Australia. Evidence from movement records indicated that the applicant had departed Australia in October 2023. The Tribunal notified the applicant's representative of this information and invited comment, advising that a decision might be made without further input if no response was received. As the applicant did not respond to this correspondence, the Tribunal was satisfied that the applicant was not in Australia. Consequently, the Tribunal concluded that the applicant did not satisfy the requirements of section 36(2) and therefore could not be granted a protection visa. The Tribunal affirmed the decision not to grant the protection visa.