1809734 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant who had departed Australia. The applicant sought review of a decision not to grant the visa.

The primary legal issue before the Tribunal was whether the applicant satisfied the criterion for a protection visa that they must be a non-citizen in Australia. This criterion is stipulated by section 36(2) of the relevant Act.

The Tribunal reasoned that section 65(1) of the Act mandates that a visa can only be granted if the prescribed criteria are met. It noted that section 36(2) specifically requires an applicant for a protection visa to be in Australia. Movement records indicated that the applicant had left Australia in July 2022. The Tribunal communicated this information to the applicant 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).

The Tribunal affirmed the decision not to grant the applicant a protection visa, as it was not necessary to consider the substantive claims for protection given the failure to meet the jurisdictional requirement of being in Australia.