1706245 (Refugee)

The applicant sought review of a decision not to grant a protection visa. The dispute concerned whether the applicant met the criteria for a protection visa, specifically the requirement of being in Australia. The decision was made by the Tribunal, with Member Joseph Lindsay presiding.

The primary legal issue before the Tribunal was whether the applicant satisfied the criterion for a protection visa that the applicant must be a non-citizen in Australia, as stipulated by section 36(2) of the *Migration Act 1958* (Cth). This criterion is a prerequisite for the grant of a visa under section 65(1) of the Act.

The Tribunal reasoned that a protection visa can only be granted if the applicant is physically present in Australia. Evidence of the applicant's movement records indicated that she had departed Australia on 19 June 2018 and was therefore not in Australia. The Tribunal had notified the applicant of this information and invited comment, but no response was received. Consequently, the Tribunal was satisfied that the applicant did not meet the criterion of being in Australia and thus could not be granted a protection visa. It was therefore unnecessary to consider the substantive grounds of the applicant's protection claim.

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