2310835 (Refugee)

The Administrative Appeals Tribunal, constituted by Member Carolyn Wilson, considered an application for a protection visa by an applicant from India. The dispute arose because the applicant had left Australia, and the Tribunal was required to determine whether the applicant met the criteria for the grant of a protection 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 is physically present in Australia.

The Tribunal reasoned that movement records indicated the applicant had departed Australia in February 2024. Consequently, the applicant was not in Australia at the time of the decision. The Tribunal had notified the applicant of this information and invited comment, but no response was received. Based on the evidence of the applicant's departure, the Tribunal was satisfied that the applicant did not meet the fundamental requirement of being in Australia, and therefore did not satisfy the criteria for a protection visa. As a result, it was unnecessary for the Tribunal to consider the substantive grounds of the applicant's protection claim. The Tribunal affirmed the decision not to grant the applicant a protection visa.