2302443 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant from the Solomon Islands who was not in Australia. The dispute concerned whether the applicant met the criteria for the grant of a protection 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 section is a prerequisite for the grant of a protection visa.

The Tribunal reasoned that section 65(1) of the *Migration Act 1958* (Cth) requires a decision-maker to be satisfied that all prescribed criteria for a visa have been met. As section 36(2) mandates that an applicant for a protection visa must be in Australia, and movement records indicated the applicant had departed Australia, the Tribunal concluded the applicant did not meet this essential criterion. The Tribunal had notified the applicant of this information and invited a response, which was not provided. Consequently, the Tribunal affirmed the decision not to grant the protection visa, finding it unnecessary to consider the substantive claims for protection.