1801061 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a non-citizen. The applicant had departed Australia, and the Tribunal was reviewing a decision not to grant the visa.

The primary legal issue before the Tribunal was whether the applicant met the criterion for a protection visa that they must 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.

The Tribunal reasoned that under section 36(2) of the *Migration Act 1958* (Cth), a protection visa can only be granted if the applicant is in Australia. Movement records indicated that the applicant had departed Australia in May 2018. The Tribunal had notified the applicant of this information and invited comment, but no response was received. Consequently, the Tribunal was satisfied that the applicant was not in Australia and therefore did not meet the prescribed criteria for the visa.

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