1805535 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a non-citizen. The dispute centred on whether the applicant met the eligibility criteria for the visa, specifically the requirement of being present in Australia.

The primary legal issue before the Tribunal was whether the applicant satisfied the criterion under section 36(2) of the *Migration Act 1958* (Cth) that a protection visa applicant must be a non-citizen in Australia. This required the Tribunal to determine the applicant's physical location at the time of the decision.

The Tribunal reasoned that section 65(1) of the *Migration Act 1958* (Cth) mandates that a visa can only be granted if prescribed criteria are met. It found, based on movement records, that the applicant had departed Australia in October 2018. Despite being notified of this information and invited to comment, the applicant did not respond. Consequently, the Tribunal was satisfied that the applicant was not in Australia, and therefore did not meet the criterion in section 36(2). As this criterion was not met, the Tribunal concluded it was unnecessary to consider the substantive grounds of the protection claim.

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