1907672 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a non-citizen. The dispute centred on whether the applicant met the eligibility criteria for the visa, specifically the requirement of being present in Australia.

The primary legal issue before the Tribunal was whether the applicant satisfied the criterion under section 36(2) of the *Migration Act 1958* (Cth) that a protection visa may only be granted if the applicant is a non-citizen in Australia.

The Tribunal reasoned that section 65(1) of the Act mandates that a visa can only be granted if prescribed criteria are met. It found, based on movement records, that the applicant had departed Australia in May 2020. Despite being invited to comment on this information, the applicant did not respond. Consequently, the Tribunal was satisfied that the applicant was not in Australia, and therefore did not meet the criterion in section 36(2). As this essential criterion was not met, the Tribunal concluded it was unnecessary to consider the substantive grounds of the applicant's protection claim.

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