1806957 (Refugee)

The Administrative Appeals Tribunal, with Member Christine Cody presiding, considered an application for a protection visa made by an applicant who was not in Australia. The dispute centred on whether the applicant met the threshold requirement for the grant of a protection visa, specifically the criterion of being physically present in 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 its obligations under section 424A of the Act to notify the applicant of adverse information and invite a response.

The Tribunal reasoned that section 36(2) of the Act is a mandatory criterion for the grant of a protection visa, meaning an applicant must be in Australia to be eligible. Evidence from movement records indicated the applicant had departed Australia. The Tribunal provided the applicant with an opportunity, under section 424A, to comment on this information, but the applicant did not respond. Consequently, the Tribunal was satisfied that the applicant was not in Australia and therefore did not meet the essential criterion under section 36(2). As this threshold requirement was not met, the Tribunal concluded it was unnecessary to consider the substantive grounds of the applicant's protection claim.

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