1707116 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a non-citizen. The dispute arose because the Department of Immigration's records indicated the applicant had departed Australia, which would preclude them from meeting the criteria for a protection 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.

The Tribunal reasoned that section 65(1) of the Act requires that all prescribed criteria for a visa be satisfied. It noted that section 36(2) specifically mandates that an applicant for a protection visa must be in Australia. The Tribunal had received information from the Department of Immigration indicating the applicant had left Australia in July 2017. The applicant was given an opportunity to comment on this information and, in response, confirmed via email that they were indeed not in Australia. Consequently, the Tribunal was satisfied that the applicant did not meet the fundamental requirement of being in Australia.

As the applicant failed to satisfy the criterion of being in Australia, the Tribunal affirmed the decision not to grant the protection visa. It was therefore unnecessary to consider the substantive grounds of the applicant's claim for protection.