1615688 (Refugee)

The Administrative Appeals Tribunal (AAT) considered an application for a protection visa made by an applicant who had departed Australia. The dispute centred on whether the applicant met the eligibility criteria for the 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 relevant Act, for the grant of a protection visa. This criterion is a prerequisite for a visa grant under section 65(1) of the Act.

The Tribunal reasoned that a protection visa can only be granted to an applicant who is physically present in Australia. Evidence from the Department of Immigration's movement records indicated that the applicant had left Australia in September 2017. The Tribunal notified the applicant of this information and invited them to provide comments, setting a deadline of 5 December 2017. As no response was received by the date of the decision, the Tribunal was satisfied that the applicant was not in Australia. Consequently, the Tribunal concluded that the applicant did not meet the criterion under section 36(2) and was therefore ineligible for a protection visa.

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