1618056 (Refugee)

The Administrative Appeals Tribunal 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, having left Australia, could satisfy the criterion that a protection visa applicant must be a non-citizen *in* Australia, as stipulated by section 36(2) of the relevant Act. The Tribunal also had to determine if it was necessary to consider 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 must be in Australia to be granted a protection visa. The Department of Immigration's records indicated the applicant had departed Australia in August 2017. The Tribunal notified the applicant of this information via email, providing a deadline for a response, but received no reply. Consequently, the Tribunal was satisfied that the applicant was not in Australia and therefore did not meet the prescribed criteria for a protection visa.

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