2108912 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant who was not in Australia. The dispute centred on whether the applicant met the eligibility criteria for the visa.

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). This section is a prerequisite 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. As section 36(2) requires the applicant to be in Australia, and movement records indicated the applicant had departed Australia, the Tribunal concluded that this essential criterion was not satisfied. Despite inviting comment from the applicant regarding their location, no response was received. Consequently, the Tribunal found it unnecessary to consider the substantive claims for protection.

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