1612617 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant who was not in Australia. The dispute arose because the Department of Home Affairs' records indicated the applicant had departed Australia in April 2018, which would preclude them from satisfying a key criterion for the visa.

The central legal issue before the Tribunal was whether the applicant met the prescribed criteria for a protection visa, specifically the requirement that the applicant be a non-citizen in Australia, as stipulated by section 36(2) of the *Migration Act 1958* (Cth). The Tribunal also had to determine if the applicant had provided any information to contradict the Department's records.

The Tribunal reasoned that under section 65(1) of the *Migration Act 1958* (Cth), a visa can only be granted if the prescribed criteria are satisfied. As section 36(2) mandates that an applicant must be in Australia to be eligible for a protection visa, and the Department's records indicated the applicant was not in Australia, the Tribunal was required to confirm this fact. The Tribunal had notified the applicant of this information and invited a response within 14 days, but no response was received. Consequently, the Tribunal was satisfied that the applicant did not meet the criterion of being in Australia and therefore could not be granted a protection visa.

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