1921578 (Refugee)

The applicant sought a protection visa, but the decision under review affirmed the refusal to grant this visa. The decision maker, Rachel Da Costa, acting as a member of the Tribunal, considered the applicant's eligibility for the visa.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa, specifically the requirement that the applicant must be a non-citizen in Australia.

The Tribunal reasoned that under section 36(2) of the *Migration Act 1958* (Cth), a criterion for a protection visa is that the applicant must be in Australia. Movement records indicated that the applicant had departed Australia in May 2021 and was therefore not in Australia. The Tribunal notified the applicant of this information and invited comment, but no response was received. Consequently, the Tribunal was satisfied that the applicant did not meet the criterion stipulated in section 36(2) and thus could not be granted a protection visa. As this threshold criterion was not met, it was unnecessary to consider the applicant's substantive claims for protection.

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