2209239 (Refugee)

The Administrative Appeals Tribunal, with Member Jane Marquard presiding, 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 eligibility criteria for the visa, specifically the requirement of being within Australia.

The primary legal issue before the Tribunal was whether the applicant satisfied the criterion stipulated in section 36(2) of the *Migration Act 1958* (Cth), which requires an applicant for a protection visa to be a non-citizen in Australia. The Tribunal also had to determine if the applicant's absence from Australia precluded the grant of the visa, irrespective of the merits of their protection claims.

The Tribunal reasoned that section 36(2) of the *Migration Act 1958* (Cth) is a mandatory criterion for the grant of a protection visa, requiring the applicant to be physically present in Australia. Evidence from movement records indicated that 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 this essential criterion. As a result, 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.