1709050 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant who was outside of Australia. The dispute centred on whether the applicant met the threshold criteria for the grant of such a visa.

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 reasoned that a protection visa can only be granted if the applicant is physically present in Australia. Evidence from movement records indicated that the applicant had departed Australia on 16 April 2018. 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 essential criterion under section 36(2) of the Act. As this threshold 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 protection visa.