1806718 (Refugee)

The applicant, a citizen of Pakistan, sought a protection visa. The dispute arose when the Tribunal determined it lacked jurisdiction to grant the visa because the applicant was no longer in Australia. The decision was made by Shane Lucas, a Member of the Tribunal.

The primary legal issue before the Tribunal was whether it had the power to grant a protection visa to an applicant who was not physically present in Australia. This turned on the interpretation of section 36(2) of the *Migration Act 1958* (Cth), which prescribes that a criterion for a protection visa is that the applicant must be a non-citizen in Australia.

The Tribunal reasoned that, as a matter of statutory interpretation, the requirement for an applicant to be "in Australia" for the grant of a protection visa was a mandatory criterion. Movement records confirmed the applicant had departed Australia on 20 April 2018. The applicant himself confirmed his return to Pakistan in correspondence with the Tribunal. Consequently, the Tribunal concluded that the applicant did not satisfy the criterion under section 36(2) of the Act.

The Tribunal affirmed the decision not to grant the applicant a protection visa, finding that it lacked jurisdiction to do so because the applicant was not in Australia. It was therefore unnecessary to consider the applicant's substantive claims regarding his fear of persecution.