1730407 (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, specifically the requirement to be physically present within Australia.

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 considered whether it was necessary to assess the applicant's substantive claims for protection given the preliminary issue of her location.

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. It noted that section 36(2) explicitly states that a criterion for a protection visa is that the applicant must be in Australia. Movement records indicated that the applicant had departed Australia on 26 March 2018. The Tribunal communicated this information to the applicant and invited comment, but remained satisfied that the applicant was not in Australia. Consequently, the Tribunal concluded that the applicant failed to meet the essential criterion of being in Australia and therefore could not be granted a protection visa.

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