2203353 (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 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, as stipulated by 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 a protection visa can only be granted if the applicant is physically present in Australia. Evidence of the applicant's movement records indicated they had departed Australia. The Tribunal notified the applicant of this information and invited comment, but received no response within the specified timeframe. Consequently, the Tribunal was satisfied that the applicant was not in Australia and therefore did not meet the essential criterion under section 36(2) of the Act.

As the applicant failed to satisfy this fundamental requirement, the Tribunal determined it was unnecessary to consider the substantive grounds of their protection claim. The Tribunal affirmed the decision not to grant the applicant a protection visa.