2308614 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant who was not in Australia. The dispute concerned whether the applicant met the eligibility criteria for the visa.

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

The Tribunal reasoned that a protection visa can only be granted to an applicant who is physically present in Australia. Evidence indicated that the applicant had departed Australia in August 2023. Despite being notified of this information and invited to provide comment, the applicant did not respond. Consequently, the Tribunal was satisfied that the applicant was not in Australia and therefore did not meet the essential criterion under section 36(2). As this criterion was not met, the Tribunal concluded it was unnecessary to consider the substantive claims for protection.

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