1704522 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a non-citizen who was not in Australia. The applicant sought review of a decision not to grant the visa.

The primary legal issue before the Tribunal was whether the applicant met the criterion for a protection visa that they must be a non-citizen in Australia. The Tribunal also considered whether it was necessary to assess the applicant's substantive claims for protection given the preliminary issue.

The Tribunal reasoned that section 36(2) of the *Migration Act 1958* (Cth) requires an applicant for a protection visa to be in Australia. Evidence from movement records indicated that the applicant had departed Australia. The Tribunal notified the applicant of this information and invited comment, but no response was received. Consequently, the Tribunal was satisfied that the applicant was not in Australia and therefore did not meet the criterion under section 36(2). As this criterion was not met, the Tribunal concluded it was unnecessary to consider the applicant's substantive claims for protection.

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