1905335 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an individual who was not physically present in Australia. The dispute centred on whether the applicant met the eligibility criteria for the visa, specifically the requirement of being within 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 the applicant's absence from Australia precluded them from being granted the visa, irrespective of the merits of their protection claims.

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. It found, based on movement records and the applicant's failure to respond to a request for comment, that the applicant was not in Australia. Consequently, the Tribunal concluded that the applicant did not satisfy the criterion in section 36(2) and was therefore ineligible for a protection visa. The Tribunal affirmed the decision not to grant the protection visa.