1608889 (Refugee)

The applicant sought a protection visa, but the Administrative Appeals Tribunal (AAT) affirmed the decision not to grant the visa. The dispute arose because movement records indicated the applicant had left Australia in October 2018, rendering them ineligible for a protection visa.

The primary legal issue before the Tribunal was whether the applicant satisfied the criterion for a protection visa that they must be a non-citizen in Australia, as stipulated by section 36(2) of the *Migration Act 1958* (Cth). The Tribunal also considered whether it was necessary to assess the applicant's substantive claims for protection given their absence from Australia.

The Tribunal reasoned that under section 65(1) of the *Migration Act 1958* (Cth), a visa can only be granted if prescribed criteria are met. Section 36(2) requires an applicant for a protection visa to be in Australia. As movement records showed the applicant had departed Australia, they did not meet this fundamental criterion. The Tribunal had notified the applicant of this issue and invited comment, but no response was received. Consequently, the Tribunal was satisfied the applicant was not in Australia and therefore could not be granted a protection visa, making it unnecessary to consider the merits of their protection claims.

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