2103016 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa 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 Australia.

The primary legal issue before the Tribunal was whether the applicant satisfied the criterion for a protection visa that the applicant must be a non-citizen in Australia, as stipulated by section 36(2) of the Migration Act 1958 (Cth).

The Tribunal reasoned that a protection visa can only be granted if the applicant is physically present in Australia. Evidence from movement records indicated that the applicant had departed 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 was not in Australia and therefore did not meet the essential criterion under section 36(2) of the Act.

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