1808296 (Refugee)

The applicant sought a protection visa, but the Administrative Appeals Tribunal, with Member Nicole Burns presiding, affirmed the decision not to grant the visa. The dispute centred on the applicant's eligibility for a protection visa, specifically whether they met the criterion of being an applicant in Australia.

The primary legal issue before the Tribunal was whether the applicant satisfied the criterion under section 36(2) of the Act, which stipulates that an applicant for a protection visa must be a non-citizen in Australia. This criterion is a prerequisite for the grant of such a visa under section 65(1) of the Act.

The Tribunal reasoned that a protection visa can only be granted if the applicant is physically present in Australia. Movement records indicated that the applicant had departed Australia in February 2022. The Tribunal notified the applicant of this information and invited comment. The applicant responded via email, confirming their presence in Bali, Indonesia, and expressing a desire to return to Australia under "the right rules." Based on this evidence, the Tribunal was satisfied that the applicant was not in Australia, and therefore did not meet the essential criterion under section 36(2). Consequently, it was unnecessary for the Tribunal to consider the substantive grounds of the applicant's protection claim.

The Tribunal affirmed the decision not to grant the applicant a protection visa.