2016046 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant who was not in Australia. The dispute concerned whether the applicant met the eligibility criteria for the visa, specifically the requirement of being within the migration zone.

The primary legal issue before the Tribunal was whether the applicant satisfied the criterion stipulated in section 36(2) of the *Migration Act 1958* (Cth), which requires an applicant for a protection visa to be a non-citizen in Australia. The Tribunal also had to determine if it was necessary to consider the substantive grounds of the protection claim given the applicant's location.

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 met. As section 36(2) clearly states that a protection visa can only be granted to an applicant who is in Australia, and movement records indicated the applicant was not in Australia, the applicant could not satisfy this fundamental criterion. Despite being notified of this issue and invited to comment, the applicant did not respond. Consequently, the Tribunal found it unnecessary to assess the merits of the protection claim. The Tribunal affirmed the decision not to grant the applicant a protection visa.