1907666 (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.

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 a decision-maker to be satisfied that prescribed criteria for a visa have been met. It noted that section 36(2) specifically mandates that an applicant for a protection visa must be in Australia. Evidence of the applicant's movement records indicated they had departed Australia in January 2023. The Tribunal communicated this information to the applicant and invited comment, but received no response. Consequently, the Tribunal was satisfied that the applicant was not in Australia and therefore did not meet the criterion under section 36(2).

The Tribunal affirmed the decision not to grant the applicant a protection visa.