1924536 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant from Egypt. The applicant was not in Australia at the time of the Tribunal's decision. The Department of Home Affairs records indicated the applicant had departed Australia in January 2020 and did not hold a visa that would permit their return.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa. Specifically, the Tribunal had to determine if the applicant satisfied the requirement under section 36(2) of the *Migration Act 1958* (Cth) that they be a non-citizen in Australia.

The Tribunal reasoned that section 65(1) of the *Migration Act 1958* (Cth) mandates that a visa can only be granted if the prescribed criteria are satisfied. As section 36(2) requires the applicant to be in Australia, and the available Departmental records indicated the applicant had left Australia and was not able to return, the Tribunal concluded the applicant did not meet this essential criterion. The Tribunal had notified the applicant of this information and invited comment, but no response was received. Consequently, the Tribunal was satisfied the applicant was not in Australia and therefore could not be granted a protection visa.

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