1705438 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an offshore applicant. The dispute concerned whether the applicant met the eligibility criteria for the visa, specifically the requirement of being within the Australian migration zone.

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), for the grant of a protection visa.

The Tribunal reasoned that a protection visa can only be granted if the applicant is physically present in Australia. Evidence from the Department of Immigration's movement records indicated that the applicant had departed Australia in October 2017. The applicant was invited to comment on this information and confirmed their departure. Consequently, the Tribunal was satisfied that the applicant was not in Australia and therefore did not meet the essential criterion under section 36(2) of the Act.

The Tribunal affirmed the decision not to grant the applicant a protection visa, as it was not necessary to consider the substantive claims for protection given the failure to meet the jurisdictional requirement of being in Australia.