1907663 (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 *Migration Act 1958* (Cth) requires that prescribed criteria for a visa be satisfied for its grant. It noted that section 36(2) specifically mandates that an applicant for a protection visa must be in Australia. Evidence, including movement records and confirmation from the applicant's migration agent, indicated that the applicant had departed Australia and was not expected to return. Consequently, the Tribunal was satisfied that the applicant did not meet the criterion of being in Australia.

The Tribunal affirmed the decision not to grant the applicant a protection visa, as the applicant failed to satisfy the fundamental requirement of being in Australia. It was therefore unnecessary to consider the substantive claims for protection.