2312876 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a non-citizen. The applicant sought review of a decision not to grant the visa.

The primary legal issue before the Tribunal was whether the applicant satisfied the criterion for a protection visa that they must be a non-citizen *in Australia*. This criterion is stipulated by section 36(2) of the *Migration Act 1958* (Cth), which requires that a visa may only be granted if the prescribed criteria are met, including that the applicant is in Australia.

The Tribunal reasoned that movement records indicated the applicant had left Australia in August 2023. The Tribunal notified the applicant of this information and invited comment, but no response was received. Based on this evidence, the Tribunal was satisfied that the applicant was not in Australia. Consequently, the Tribunal concluded that the applicant failed to satisfy the requirements of section 36(2) of the *Migration Act 1958* (Cth) and therefore could not be granted a protection visa. As this threshold criterion was not met, it was unnecessary for the Tribunal to consider the applicant's substantive claims for protection.

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