1831960 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant who was not in Australia. The dispute concerned whether the applicant met the eligibility criteria for the visa.

The primary legal issue before the Tribunal was whether the applicant satisfied the criterion that they be a non-citizen in Australia, as stipulated by section 36(2) of the Migration Act 1958 (Cth), for the grant of a protection visa.

The Tribunal reasoned that section 65(1) of the Act requires a decision-maker to be satisfied that prescribed criteria for a visa have been met. It noted that section 36(2) specifically requires an applicant for a protection visa to be in Australia. Evidence of movement records indicated the applicant had departed Australia. The Tribunal had notified the applicant of this information and invited comment, but no response was received. Consequently, the Tribunal was satisfied the applicant was not in Australia and therefore did not meet the criterion under section 36(2). As this criterion was not met, the Tribunal found it unnecessary to consider the substantive claims for protection. The Tribunal affirmed the decision not to grant the protection visa.