1707083 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a non-citizen. The dispute centred on whether the applicant met the threshold requirement for the grant of such a visa, specifically concerning their physical presence in Australia.

The primary legal issue before the Tribunal was whether the applicant satisfied the criterion stipulated in section 36(2) of the *Migration Act 1958* (Cth), which requires an applicant for a protection visa to be a non-citizen in Australia. The Tribunal also had to determine if it was necessary to consider the substantive claims for protection given the applicant's location.

The Tribunal reasoned that section 65(1) of the *Migration Act 1958* (Cth) mandates that a visa can only be granted if the prescribed criteria are met. As section 36(2) clearly states that being in Australia is a criterion for a protection visa, the applicant's physical presence in Australia was a prerequisite for a grant. The Tribunal noted that departmental records indicated the applicant had departed Australia in June 2017. Despite being notified of this information and invited to comment, the applicant did not respond. Consequently, the Tribunal was satisfied that the applicant was not in Australia and therefore did not meet the criterion under section 36(2).

As the applicant failed to satisfy this fundamental requirement, the Tribunal concluded that it was unnecessary to assess the applicant's substantive claims for protection. The Tribunal affirmed the decision not to grant the applicant a protection visa.