1809841 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa by an applicant from Pakistan. 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. This criterion is stipulated by section 36(2) of the *Migration Act 1958* (Cth), which requires the decision maker to be satisfied that the prescribed criteria for the visa have been met, including that the applicant is physically present in Australia.

The Tribunal reasoned that a protection visa can only be granted if the applicant is in Australia. Movement records indicated that the applicant had left Australia in June 2022. The Tribunal notified the applicant of this information and invited comment, but received no response. Based on the available evidence, the Tribunal was satisfied that the applicant was not in Australia and therefore did not meet the essential criterion under section 36(2) of the Act. Consequently, it was unnecessary for the Tribunal to consider the substantive grounds of the applicant's claim for protection.

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