2103018 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa by an applicant from South Korea. The applicant had departed Australia, and the Tribunal was reviewing a decision not to grant the visa.

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

The Tribunal reasoned that section 65(1) of the *Migration Act 1958* (Cth) requires a decision-maker to be satisfied that prescribed criteria for a visa have been met. It noted that section 36(2) specifically mandates that an applicant for a protection visa must be in Australia. Movement records indicated the applicant had left Australia in May 2022. The Tribunal had 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 criterion under section 36(2).

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