1711331 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a Lebanese national. The applicant had departed Australia, and the core of the dispute concerned whether the applicant's presence in Australia was a prerequisite for the grant of 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 Migration Act 1958 (Cth), for the grant of a protection visa.

The Tribunal reasoned that section 36(2) of the Act mandates that an applicant for a protection visa must be in Australia. Movement records indicated the applicant had left Australia in March 2019. The Tribunal notified the applicant of this information and invited comment. The applicant's representative, in a written response, acknowledged the applicant's return to Lebanon and conceded that section 36(2) could only be met if the applicant was physically present in Australia. Consequently, the Tribunal was satisfied that the applicant did not meet this essential criterion.

The Tribunal affirmed the decision not to grant the applicant a protection visa, finding it unnecessary to consider the substantive claims for protection given the failure to satisfy the jurisdictional requirement of being in Australia.