1706927 (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 criteria for the visa, specifically the requirement of being in Australia.

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 decision maker to be satisfied that the prescribed criteria for the visa have been met under section 65(1) of the Act.

The Tribunal's reasoning was based on the Department of Immigration's movement records, which indicated the applicant had left Australia in June 2017. The Tribunal had invited the applicant to comment on this information by letter dated 4 December 2017, but received no response. Consequently, the Tribunal was satisfied that the applicant was not in Australia, and therefore did not meet the criterion under section 36(2). As this fundamental requirement was not met, the Tribunal found it unnecessary to consider the applicant's substantive claims for protection.

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