2216151 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa by an applicant from Tonga who was not in Australia. The dispute centred on whether the applicant met the eligibility criteria for a protection visa, specifically the requirement of being within Australia.

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), for the grant of a protection visa. The Tribunal also had to determine if it was necessary to consider the applicant's substantive claims for protection given their location.

The Tribunal reasoned that under section 65(1) of the *Migration Act 1958* (Cth), a visa can only be granted if prescribed criteria are met. Section 36(2) clearly states that a criterion for a protection visa is that the applicant must be in Australia. Movement records indicated the applicant had departed Australia. The Tribunal had notified the applicant of this information and invited comment, and was satisfied the applicant was not in Australia. Consequently, the applicant failed to meet the fundamental requirement of section 36(2), rendering it unnecessary to assess the merits of their protection claims.

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