1910138 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant who had departed Australia. The dispute arose because movement records indicated the applicant was no longer in Australia, which is a prerequisite for the grant of such a visa.

The primary legal issue before the Tribunal was whether the applicant satisfied the criteria for a protection visa, specifically the requirement under section 36(2) of the *Migration Act 1958* (Cth) that the applicant be a non-citizen *in Australia*. The Tribunal also had to consider whether to affirm the decision not to grant the visa, given the applicant's absence from Australia.

The Tribunal reasoned that section 65(1) of the *Migration Act 1958* (Cth) mandates that a visa can only be granted if prescribed criteria are met. As section 36(2) requires the applicant to be in Australia, and movement records confirmed the applicant left Australia in March 2020, the applicant did not satisfy this essential criterion. The Tribunal had invited the applicant to comment on this information, but no response was received. Consequently, the Tribunal was satisfied that the applicant was not in Australia and therefore ineligible for a protection visa.

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