1827821 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant who was not in Australia. The dispute arose because the applicant did not meet a fundamental criterion for the grant of a protection visa, namely being present in 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 it could proceed to consider the substantive claims for protection in the absence of the applicant meeting this threshold requirement.

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 met. As movement records indicated the applicant had departed Australia, and the applicant failed to respond to the Tribunal's invitation to comment on this information, the Tribunal was satisfied that the applicant was not in Australia. Consequently, the applicant did not satisfy the criterion in section 36(2). The Tribunal concluded that it was unnecessary to consider the applicant's substantive claims for protection.

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