1801249 (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 December 2018. The Tribunal had previously communicated with the applicant, noting that its records indicated she was not in Australia and therefore ineligible for a protection visa, and invited her to respond.

The central legal issue before the Tribunal was whether the applicant met the criteria for a protection visa, specifically the requirement that the applicant be a non-citizen in Australia. This criterion is stipulated by section 36(2) of the relevant Act, which mandates that a visa may only be granted if the decision-maker is satisfied that the prescribed criteria have been met.

The Tribunal reasoned that, pursuant to section 36(2) of the Act, a protection visa can only be granted to an applicant who is in Australia. Movement records indicated the applicant had left Australia in December 2018, and no response was received from the applicant following the Tribunal's notification of this information and invitation to comment. Consequently, the Tribunal was satisfied that the applicant was not in Australia and therefore did not satisfy this essential criterion for a protection visa. As a result, the Tribunal found it 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.