2110295 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a non-citizen who had departed Australia. The applicant sought review of 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* at the time of the decision, 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 that all prescribed criteria for a visa must be satisfied for a visa to be granted. It noted that section 36(2) specifically requires an applicant for a protection visa to be in Australia. Movement records indicated that the applicant had left Australia in January 2024. The Tribunal notified the applicant of this information and invited comment, but received no response. 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, finding it unnecessary to consider the substantive grounds of the protection claim given the failure to meet the jurisdictional requirement of being in Australia.