1711504 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a citizen of Saudi Arabia. The applicant was not physically present in Australia at the time of the Tribunal's decision. The dispute centred on whether the applicant met the eligibility criteria for a protection visa, specifically the requirement of being in Australia.

The primary legal issue before the Tribunal was whether the applicant satisfied the criterion stipulated in section 36(2) of the *Migration Act 1958* (Cth), which mandates that an applicant for a protection visa must be a non-citizen in Australia. The Tribunal also had to consider the applicant's explanation for his absence from Australia and its impact on his claims.

The Tribunal reasoned that section 36(2) of the Act is a jurisdictional requirement for the grant of a protection visa, meaning the applicant must be physically present in Australia. Movement records indicated the applicant had departed Australia in May 2020. While the applicant claimed he returned to Saudi Arabia to care for his mother during surgery, he provided no supporting medical evidence. Furthermore, the Tribunal found it significant that the applicant had been able to return to Saudi Arabia, a country from which he claimed he would face serious harm, without incident for over three months. Given the lack of evidence and the applicant's presence in Saudi Arabia, the Tribunal concluded that the applicant did not satisfy the criterion of being in Australia. Consequently, it was unnecessary to assess the substantive grounds of his protection claim.

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