1814524 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a non-citizen who had departed Australia. The dispute arose because the Tribunal's records indicated the applicant was no longer in Australia, which is a prerequisite for granting a protection 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 required the Tribunal to determine the applicant's location at the time of the decision.

The Tribunal reasoned that section 65(1) of the Act mandates that a visa can only be granted if prescribed criteria are met, and section 36(2) specifically requires the applicant to be in Australia. Movement records showed the applicant had left Australia in February 2019. The Tribunal communicated this information to the applicant, inviting comment, but received no response. Based on the available evidence and the lack of response, the Tribunal was satisfied the applicant was not in Australia, and therefore did not meet the criterion under section 36(2). Consequently, it was unnecessary to consider the substantive grounds of the protection claim.

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