1716295 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant from Taiwan. The dispute centred on whether the applicant met the threshold requirements for the grant of such a visa.

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 requires an applicant for a protection visa to be in Australia.

The Tribunal reasoned that section 65(1) of the Act mandates that a visa can only be granted if the prescribed criteria are met. It noted that section 36(2) specifically requires the applicant to be physically present in Australia. The Department of Immigration's records indicated the applicant had departed Australia in September 2017. The Tribunal had notified the applicant of this information and invited comment, but no response was received. Furthermore, the applicant failed to attend a scheduled hearing. Based on this evidence, the Tribunal was satisfied that the applicant was not in Australia, and therefore did not meet the criterion under section 36(2). Consequently, the Tribunal affirmed the decision not to grant the protection visa, finding it unnecessary to consider the substantive claims for protection.