1902839 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant who had left Australia. The Tribunal was required to determine whether the applicant met the criteria for the grant of a protection visa.

The central legal issue before the Tribunal was whether the applicant satisfied the requirement under section 36(2) of the *Migration Act 1958* (Cth) that they be a non-citizen *in Australia* to be eligible for a protection 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 satisfied. It noted that section 36(2) specifically requires an applicant for a protection visa to be in Australia. Evidence from movement records indicated that the applicant had departed Australia in July 2019. The Tribunal notified the applicant of this information and invited comment, but no response was received. Consequently, the Tribunal was satisfied that 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 concluded it was unnecessary to consider the substantive claims for protection. The Tribunal affirmed the decision not to grant the applicant a protection visa.