1812803 (Refugee)

The Administrative Appeals Tribunal, constituted by Member Christine Cody, 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 such a visa.

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 a protection visa can only be granted if the applicant is physically present in Australia. Evidence from movement records indicated that the applicant had departed Australia. The Tribunal provided the applicant with an opportunity to comment on this information, as required by section 424A, but received no response. Consequently, the Tribunal was satisfied that the applicant was not in Australia and therefore did not meet the fundamental criterion under section 36(2) of the Act. As this preliminary 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.