2102427 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa by an applicant who was not in Australia. The dispute centred on whether the applicant met the threshold requirement for a protection visa, which necessitates being within Australia.

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 reasoned that a protection visa can only be granted if the applicant is physically present in Australia. Evidence, including movement records and the applicant's own confirmation via email, established that the applicant had departed Australia and was residing in Pakistan. Consequently, the Tribunal concluded that the applicant did not meet the fundamental requirement of being in Australia, rendering them ineligible for a protection visa. As this preliminary criterion was not met, the Tribunal found it unnecessary to assess the substantive claims made by the applicant for protection. The Tribunal affirmed the decision not to grant the protection visa.