1706672 (Refugee)

The Administrative Appeals Tribunal (AAT) considered an application for a protection visa made by a non-citizen. The applicant had left Australia and was in a third country with her husband, an Australian permanent resident, who was working there. Her Australian passport had expired, and she did not hold a visa that would permit her return to Australia.

The primary legal issue before the Tribunal was whether the applicant satisfied the criteria for a protection visa, specifically the requirement that the applicant be a non-citizen *in Australia*. The Tribunal also considered the applicant's response to a notification that she was not recorded as being in Australia.

The Tribunal reasoned that section 36(2) of the *Migration Act 1958* (Cth) mandates that a protection visa can only be granted if the applicant is in Australia. Movement records indicated the applicant had departed Australia in July 2019. While the applicant acknowledged she was outside Australia, she explained her departure was to accompany her husband for his work and that her passport had expired. She also indicated a desire for a Skype interview. However, the Tribunal found that the applicant's own admissions and the evidence of her departure confirmed she was not in Australia. Consequently, she failed to satisfy the jurisdictional requirement of being in Australia, rendering her ineligible for a protection visa.

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