2312413 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant who was not in Australia. The dispute centred on whether the applicant met the eligibility criteria for the visa, specifically the requirement of being within Australia.

The primary legal issue before the Tribunal was whether the applicant satisfied the criterion stipulated in section 36(2) of the *Migration Act 1958* (Cth), which requires an applicant for a protection visa to be a non-citizen in Australia. The Tribunal also had to determine if the applicant's absence from Australia precluded the grant of the visa, irrespective of the merits of her protection claims.

The Tribunal reasoned that section 36(2) of the Act mandates that a protection visa can only be granted if the applicant is physically present in Australia. Evidence indicated that the applicant had departed Australia in November 2023. Despite being notified of this information and invited to respond, the applicant did not provide any comment. Consequently, the Tribunal was satisfied that the applicant was not in Australia, and therefore did not meet the essential criterion for a protection visa.

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