1716762 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a non-citizen who was not physically present in Australia. The applicant sought review of a decision not to grant the visa.

The primary legal issue before the Tribunal was whether the applicant met the criterion for a protection visa that they must be a non-citizen in Australia, as stipulated by section 36(2) of the relevant Act.

The Tribunal reasoned that under section 65(1) of the Act, a visa can only be granted if the prescribed criteria are satisfied. It noted that section 36(2) specifically requires an applicant for a protection visa to be in Australia. Movement records indicated the applicant had departed Australia in March 2018. The Tribunal communicated this information to the applicant and invited comment, but received no response. Consequently, the Tribunal was satisfied that the applicant was not in Australia and therefore did not meet the essential criterion for a protection visa.

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