1719473 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a non-citizen. The applicant was not physically present in Australia, having departed in November 2018. The Tribunal had previously communicated with the applicant, noting that its records indicated the applicant was not in Australia and therefore ineligible for a protection visa, and invited comment. No response was received from the applicant.

The primary legal issue before the Tribunal was whether the applicant met the prescribed criteria for the grant of a protection visa. Specifically, the Tribunal was required to determine if the applicant satisfied the criterion that they 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 decision-maker is satisfied that the prescribed criteria have been met. The Tribunal found, based on movement records and the lack of any contrary information from the applicant despite being invited to provide it, that the applicant was not in Australia. Consequently, the applicant failed to satisfy the criterion under section 36(2) of the Act. As this essential criterion was not met, the Tribunal concluded it was 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.