2304579 (Refugee)

The Administrative Appeals Tribunal (AAT) considered the case of an applicant for a protection visa who was not in Australia. The applicant's representative argued that the Tribunal should consider the protection claims due to the severity of the applicant's situation, the fact that the applicant was offshore through no fault of their own, the delegate's prior consideration of persecution risks, and prejudice caused by delays. However, the applicant conceded they were located in Iraq and therefore not in Australia.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa, specifically the requirement under section 36(2)(a) of the *Migration Act 1958* (Cth) that the applicant be a non-citizen in Australia. The Tribunal also considered whether it could overlook the applicant's offshore status or refer the matter for Ministerial Intervention.

The Tribunal reasoned that section 36(2)(a) of the Act mandates that an applicant for a protection visa must be in Australia. Movement records indicated the applicant had left Australia, and the applicant conceded this fact. Consequently, the Tribunal found that the applicant did not satisfy this essential criterion. The Tribunal noted that the reasons for the applicant being offshore were irrelevant to the factual determination of their location. Furthermore, the Tribunal observed that the Minister's Guidelines on Ministerial Powers indicate that cases where the person has left Australia are generally inappropriate for consideration, suggesting the applicant's case would not meet the criteria for Ministerial Intervention.

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 threshold requirement of being in Australia.