1717309 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a person who had departed Australia. The core of the dispute was whether the applicant met the eligibility criteria for a protection visa, specifically the requirement of being physically present within Australia.

The primary legal issue before the Tribunal was to determine whether the applicant satisfied the criterion that they be a non-citizen in Australia, as stipulated by section 36(2) of the relevant Act, for the grant of a protection visa. This criterion is a prerequisite for the Tribunal to consider the substantive claims for protection.

The Tribunal's reasoning focused on the jurisdictional requirement of presence in Australia. Movement records indicated that the applicant had left Australia in September 2017. The Tribunal notified the applicant of this information and invited them to provide comments, but no response was received. 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 criterion was not met, the Tribunal concluded it was unnecessary to assess the applicant's claims for protection.

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