1908881 (Refugee)

The Administrative Appeals Tribunal considered an application for a Protection visa made by an applicant who was not 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 under section 65(1) of the Act, a visa can only be granted if the prescribed criteria are met. It noted that section 36(2) specifically requires an applicant for a Protection visa to be in Australia. Based on movement records indicating the applicant had departed Australia, and in the absence of any response from the applicant to a request for comment on this information, the Tribunal was satisfied that the applicant was not in Australia. Consequently, the applicant failed to satisfy this essential criterion.

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