1613721 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant from India. The dispute arose because the applicant had departed Australia, and the Tribunal was required to determine whether the applicant met the criteria for the visa.

The primary legal issue before the Tribunal was whether the applicant satisfied the criterion that they must be a non-citizen *in* Australia to be granted a protection visa, as stipulated by section 36(2) of the relevant Act. The Tribunal also considered whether it was necessary to assess the applicant's substantive claims for protection, given the preliminary issue of their presence in Australia.

The Tribunal reasoned that section 36(2) of the Act mandates that an applicant for a protection visa must be physically present in Australia. Movement records indicated the applicant had left Australia in June 2018. The Tribunal notified the applicant of this information and invited comment. The applicant responded by email, confirming their departure due to a personal emergency and expressing a desire to return to Australia. Based on this confirmation and the movement records, the Tribunal was satisfied that the applicant was not in Australia. Consequently, the Tribunal concluded that the applicant failed to meet the essential criterion of being in Australia and therefore could not be granted a protection visa. As this conclusion was determinative, the Tribunal did not proceed to consider the applicant's substantive claims for protection.

The Tribunal affirmed the decision not to grant the applicant a protection visa. The Tribunal also stated it was unable to advise on eligibility for a further visa to enter Australia, directing the applicant to the relevant Australian Embassy for such enquiries.