1716005 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant who was not in Australia. The dispute centred on whether the applicant met the eligibility criteria for the 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. This criterion is a prerequisite for the grant of a protection visa.

The Tribunal reasoned that a protection visa can only be granted if the applicant is physically present in Australia. Evidence, including movement records, indicated that the applicant had departed Australia in October 2022. The Tribunal had notified the applicant of this information and invited comment, but received no response as their nominated email was inactive. Consequently, the Tribunal was satisfied that the applicant was not in Australia and therefore did not meet the essential criterion under section 36(2). As this threshold requirement was not met, the Tribunal found it unnecessary to consider the substantive grounds of the applicant's protection claim.

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