1705884 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant who had departed Australia. The dispute arose because the Tribunal had information indicating the applicant was no longer in Australia, which would preclude the grant of a protection 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, as stipulated by section 36(2) of the Migration Act 1958 (Cth). This required the Tribunal to determine if the applicant was, in fact, still present in Australia.

The Tribunal applied section 65(1) of the Migration Act, which mandates that a visa can only be granted if the prescribed criteria are met. Having received information that the applicant had departed Australia in October 2019 and had not returned, the Tribunal issued an invitation under section 424A of the Act, requesting the applicant to comment on this information. As no response was received by the specified deadline, 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 therefore could not be granted a protection visa.

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