1805633 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant who had departed Australia. The dispute centred on whether the applicant met the threshold requirement for the grant of such a visa.

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. This criterion is a prerequisite for the grant of a protection visa.

The Tribunal reasoned that section 36(2) mandates that an applicant must be physically present in Australia to be eligible for a protection visa. Evidence, including movement records and the applicant's own admission via email, indicated that the applicant had left Australia in June 2019 and had returned to Indonesia. Consequently, the Tribunal was satisfied that the applicant did not meet the fundamental requirement of being in Australia. As this criterion was not met, the Tribunal concluded it was unnecessary to assess the applicant's substantive claims for protection. The Tribunal affirmed the decision not to grant the protection visa.