1618858 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa by an applicant from India who was offshore. The dispute centred on 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), which is a prerequisite for the grant of a protection visa.

The Tribunal reasoned that section 65(1) of the *Migration Act 1958* (Cth) requires a decision-maker to be satisfied that prescribed criteria for a visa have been met. It found, based on movement records, that the applicant had departed Australia on 23 February 2018 and was therefore not in Australia. Despite being invited to comment on this information, the applicant did not respond. Consequently, the Tribunal concluded that the applicant did not satisfy the requirement of being in Australia under section 36(2) and could not be granted a protection visa. The Tribunal affirmed the decision not to grant the protection visa.