1710526 (Refugee)

The applicant, a Sri Lankan national, sought review of a decision not to grant him a protection visa. The dispute centred on whether the applicant met the criterion that he be a non-citizen *in* Australia, as required by section 36(2) of the *Migration Act 1958* (Cth) for the grant of a protection visa. The decision was made by a member of the Administrative Appeals Tribunal.

The Tribunal was required to determine whether the applicant satisfied the criterion of being in Australia at the time of the decision. The Tribunal also considered whether it was necessary to assess the applicant's substantive claims for protection, given the preliminary issue of his location.

The Tribunal reasoned that section 36(2) of the *Migration Act 1958* (Cth) mandates that an applicant for a protection visa must be in Australia. Evidence from the Department of Immigration indicated the applicant had departed Australia in April 2015. 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 was not in Australia and therefore did not meet the essential criterion for a protection visa. As this 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 applicant a protection visa.