1722582 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a non-citizen who was not within Australia. The applicant sought review of a decision not to grant the visa.

The primary legal issue before the Tribunal was whether the applicant met the criterion for a protection visa that they must be a non-citizen in Australia. The Tribunal also considered whether it was necessary to assess the applicant's substantive claims for protection given the preliminary issue.

The Tribunal reasoned that under section 36(2) of the *Migration Act 1958* (Cth), a key criterion for the grant of a protection visa is that the applicant must be in Australia. Evidence of the applicant's movement records indicated that they had departed Australia on 6 November 2017. The Tribunal 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 prescribed criteria for a protection visa.

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