1826058 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a non-citizen who was not physically present in Australia. The applicant sought review of 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 the applicant's presence in Australia, as per section 65(1) of the Act.

The Tribunal reasoned that movement records indicated the applicant had departed Australia in March 2019. 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, the Tribunal found it unnecessary to consider the applicant's substantive claims for protection.

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