2016213 (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 applicant's substantive claims for protection, given the preliminary jurisdictional issue.

The Tribunal reasoned that section 36(2) of the *Migration Act 1958* (Cth) is a mandatory criterion for the grant of a protection visa, meaning the applicant must be physically present in Australia. Evidence from movement records indicated the applicant was 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 of being in Australia, and therefore, could not be granted a protection visa. As this threshold requirement was not met, the Tribunal concluded it was unnecessary to assess the applicant's substantive claims for protection.

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