1703723 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant who was not physically present in Australia. The dispute arose because the Department of Immigration's records indicated the applicant had departed Australia in March 2017, rendering them ineligible for a protection visa.

The primary legal issue before the Tribunal was whether the applicant met the criterion for a protection visa that they must be a non-citizen *in* Australia, 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 their absence from Australia.

The Tribunal reasoned that under section 65(1) of the Act, a visa can only be granted if the prescribed criteria are satisfied. As section 36(2) requires the applicant to be in Australia, and the Department's movement records indicated the applicant had left the country, the Tribunal was satisfied that this essential criterion was not met. The Tribunal had notified the applicant of this information and invited comment, but no response was received. Consequently, the Tribunal concluded that it was unnecessary to consider the applicant's substantive claims for protection.

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