2205721 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa by an applicant who was not in Australia. The dispute concerned 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 criterion is a prerequisite for the grant of a protection visa.

The Tribunal reasoned that section 65(1) of the Act mandates that a visa can only be granted if the prescribed criteria are met. It noted that section 36(2) specifically requires an applicant for a protection visa to be in Australia. Evidence from movement records indicated the applicant had departed 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 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, as it was not necessary to consider the substantive claims for protection given the failure to meet the jurisdictional requirement of being in Australia.