1728856 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a non-citizen. The dispute centred on whether the applicant met the eligibility criteria for the visa, specifically the requirement of being present in Australia.

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, for the grant of a protection visa. This criterion is a prerequisite for a visa decision maker to be satisfied under section 65(1) of the Act.

The Tribunal reasoned that movement records indicated the applicant had departed Australia in December 2018. Consequently, the applicant was not physically present in Australia at the time of the decision. The Tribunal had notified the applicant of this information and invited comment, but no response was received. Based on the evidence of the applicant's departure and the lack of response, the Tribunal was satisfied that the applicant did not meet the requirement of being in Australia. As this 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.