1816745 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a non-citizen. The applicant had previously been in Australia but had departed the country. The core of the dispute concerned whether the applicant met the eligibility criteria for a protection visa, specifically the requirement of being physically present within 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 had to determine if the applicant's departure from Australia rendered them ineligible for the visa.

The Tribunal reasoned that section 65(1) of the *Migration Act 1958* (Cth) mandates that a visa can only be granted if the prescribed criteria are met. Crucially, section 36(2) establishes that being in Australia is a mandatory criterion for a protection visa. Movement records indicated the applicant had left Australia in May 2019. The Tribunal notified the applicant of this information and invited comment, but received no response. Consequently, the Tribunal was satisfied that the applicant was not in Australia and therefore did not meet the essential criterion under section 36(2).

The Tribunal affirmed the decision not to grant the applicant a protection visa, as the applicant's absence from Australia meant they did not satisfy the statutory requirements for the visa.