2211758 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a non-citizen who was not in Australia. The applicant had previously departed Australia and was outside the migration zone at the time of the Tribunal's consideration.

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 also considered whether it was necessary to assess the applicant's substantive claims for protection given their location.

The Tribunal reasoned that section 36(2) of the *Migration Act 1958* (Cth) mandates that an applicant for a protection visa must be in Australia. Evidence, including movement records, indicated that the applicant had left Australia and was not present within the migration zone. Despite being notified of this information and invited to comment, the applicant did not respond. Consequently, the Tribunal was satisfied that the applicant did not meet the threshold requirement of being in Australia, rendering them ineligible for a protection visa.

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