1805912 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant who was outside of Australia. The dispute concerned whether the applicant met the criteria for the grant of a protection visa, specifically the requirement that the applicant be 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. The Tribunal was required to determine if the applicant's physical location outside of Australia precluded them from meeting this essential requirement.

The Tribunal reasoned that section 65(1) of the Act mandates that a visa may only be granted if prescribed criteria are satisfied, and section 36(2) specifically requires an applicant for a protection visa to be in Australia. Movement records indicated the applicant had departed Australia on 7 July 2018. The Tribunal notified the applicant of this information and invited comment, but received no response. Consequently, the Tribunal was satisfied that the applicant was not in Australia, and therefore did not meet the criterion under section 36(2). As this criterion was not met, the Tribunal found it unnecessary to consider the applicant's substantive claims for protection. The Tribunal affirmed the decision not to grant the protection visa.