1731351 (Refugee)

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

The primary legal issue before the Tribunal was whether the applicant satisfied the criterion for a protection visa that they must be in Australia, as stipulated by s.36(2) of the *Migration Act 1958* (Cth). This section mandates that a protection visa can only be granted if the applicant meets the prescribed criteria, including being physically present in Australia.

The Tribunal reasoned that under s.65(1) of the Act, a visa can only be granted if the prescribed criteria are met. It noted that movement records indicated the applicant had left Australia in September 2018. The Tribunal communicated this information to the applicant, inviting comment, but received no response. Based on the available evidence and the lack of contrary submission, the Tribunal was satisfied that the applicant was not in Australia. Consequently, the Tribunal concluded that the applicant failed to satisfy the s.36(2) criterion and was therefore ineligible for a protection visa.

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