2101049 (Refugee)

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

The primary legal issue before the Tribunal was whether the applicant satisfied the criterion that they be a non-citizen in Australia, as stipulated by section 36(2) of the *Migration Act 1958* (Cth), for the grant of a Protection 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 met. Section 36(2) requires an applicant for a Protection visa to be in Australia. Movement records indicated the applicant had departed Australia. Despite being notified and invited to comment, the applicant did not respond to the Tribunal's advice that they were not in Australia and therefore ineligible for a Protection visa. Consequently, the Tribunal was satisfied the applicant did not meet the criterion of being in Australia.

The Tribunal affirmed the decision not to grant the applicant a Protection visa, as it was not necessary to consider the substantive claims for protection given the failure to meet the jurisdictional requirement.