1827846 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant who was not present in Australia. The Tribunal's decision was to affirm the refusal of the visa.

The primary legal issue before the Tribunal was whether the applicant satisfied the criteria for a protection visa, specifically the requirement that the applicant be a non-citizen *in Australia*. The Tribunal also considered whether it was necessary to assess the applicant's substantive claims for protection given the preliminary issue of their location.

The Tribunal reasoned that under section 65(1) of the *Migration Act 1958* (Cth), a visa can only be granted if prescribed criteria are met. Section 36(2) of the Act establishes that a criterion for a protection visa is that the applicant is a non-citizen in Australia. Movement records indicated the applicant had departed Australia in June 2019. The Tribunal notified the applicant of this information and invited comment, but received no response. Based on the evidence of the applicant's departure, the Tribunal was satisfied that the applicant was not in Australia, and therefore did not meet the criterion under section 36(2). Consequently, the Tribunal concluded 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.