1726523 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an individual who was not in Australia. The dispute centred on whether the applicant met the threshold criteria for the grant of such a visa, given their location outside the migration zone.

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 applicant's substantive claims for protection, given the preliminary jurisdictional issue.

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 satisfied. Crucially, section 36(2) establishes that being in Australia is a prerequisite for a protection visa. Evidence from movement records indicated the applicant had departed Australia in December 2019. 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 this threshold requirement was not met, the Tribunal concluded 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.