1730069 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a non-citizen. The applicant's claim for a protection visa was refused by the Department of Immigration, and this decision was subsequently affirmed by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant satisfied the criteria for the grant of a protection visa, specifically the requirement that the applicant be a non-citizen in Australia. The Tribunal also considered whether it was necessary to determine 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 criterion for a protection visa is that the applicant must be in Australia. Evidence from the Department of Immigration's movement records indicated that the applicant had departed Australia in June 2018 and was therefore no longer in the country. The Tribunal had communicated this information to the applicant and invited comment, but received no response. Consequently, the Tribunal was satisfied that the applicant did not meet the essential criterion of being in Australia, and therefore could not be granted a protection visa. As this criterion was not met, the Tribunal found it unnecessary to consider the applicant's substantive claims for protection.

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