1808699 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant who was not in Australia. The Tribunal was required to determine whether the applicant met the prescribed criteria for the grant of a protection visa.

The central 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 whether it was necessary to assess the applicant's substantive claims for protection given the jurisdictional issue.

The Tribunal reasoned that under section 65(1) of the *Migration Act 1958* (Cth), a visa can only be granted if the prescribed criteria are satisfied. As movement records indicated the applicant had left Australia in January 2019, the Tribunal was satisfied that the applicant was not in Australia. The Tribunal had notified the applicant of this information and invited comment, but no response was received. Consequently, the Tribunal concluded that the applicant did not satisfy the criterion in section 36(2) and therefore could not be granted a protection visa. The Tribunal determined that it was unnecessary to consider the applicant's substantive case for protection.

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