1727352 (Refugee)

The applicant sought a protection visa, but the Tribunal affirmed the decision not to grant the visa. The dispute arose because the applicant was not in Australia, a prerequisite for the grant of a protection visa. The decision was made by Nora Lamont, a Member of the Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa, specifically the requirement that the applicant be a non-citizen in Australia. The Tribunal also considered whether it was necessary to assess the applicant's substantive claims for protection given their absence from Australia.

The Tribunal reasoned that under section 65(1) of the *Migration Act 1958* (Cth), a visa may only be granted if the prescribed criteria are satisfied. Section 36(2) of the Act stipulates that a criterion for a protection visa is that the applicant must be a non-citizen in Australia. Movement records indicated the applicant had left Australia in October 2018. The Tribunal contacted the applicant to advise them of this information and invite comment, but received no response. 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 fundamental 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.