1719037 (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 eligibility criteria for the 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 of the applicant's movement records indicated that they had departed Australia on 2 July 2018. 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 under section 36(2) of the Act. As this threshold requirement was not met, the Tribunal found it unnecessary to consider the substantive grounds of the applicant's protection claim. The Tribunal affirmed the decision not to grant the protection visa.