2112990 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a non-citizen who was not in Australia. The applicant sought review of a decision not to grant the visa.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa, specifically the requirement that the applicant be a non-citizen in Australia.

The Tribunal reasoned that under section 36(2) of the *Migration Act 1958* (Cth), a criterion for a protection visa is that the applicant must be in Australia. Movement records indicated that the applicant had departed Australia in January 2022 and was therefore not in Australia. 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 did not meet the jurisdictional requirement of being in Australia, and thus could not be granted a protection visa. The Tribunal found it unnecessary to consider the substantive grounds of the applicant's protection claim.

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