1927041 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant from Taiwan. The applicant was not in Australia at the time of the decision, having departed the migration zone in September 2023.

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 was a non-citizen in Australia, as required by section 36(2) of the *Migration Act 1958* (Cth) for the grant of such a visa.

The Tribunal reasoned that under section 65(1) of the *Migration Act 1958* (Cth), a visa can only be granted if the prescribed criteria are satisfied. As section 36(2) mandates that an applicant must be in Australia to be eligible for a protection visa, and movement records indicated the applicant had left Australia, the Tribunal concluded the applicant did not meet this fundamental criterion. The Tribunal had notified the applicant of this issue and invited comment, but no response was received. Consequently, the Tribunal found it 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.