2117996 (Refugee)

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

The primary legal issue before the Tribunal was whether the applicant satisfied the criterion that they be a non-citizen *in Australia* for the purposes of section 36(2) of the *Migration Act 1958* (Cth). This criterion is a prerequisite for the grant of a protection visa.

The Tribunal reasoned that section 36(2) of the Act mandates that an applicant must be in Australia to be eligible for a protection visa. Evidence from movement records indicated that the applicant had departed Australia. 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 essential criterion under section 36(2). As this threshold criterion was not met, the Tribunal found it unnecessary to consider the substantive claims for protection. The Tribunal affirmed the decision not to grant the protection visa.