1816335 (Refugee)

The Administrative Appeals Tribunal, constituted by Member Christine Cody, considered an application for a protection visa made by a non-citizen who had departed Australia. The core of the dispute revolved around the applicant's physical presence in Australia at the time of the decision-making process.

The primary legal issue before the Tribunal was whether the applicant met the prescribed criteria for the grant of a protection visa, specifically the requirement that the applicant be a non-citizen *in* Australia. This criterion is stipulated by section 36(2) of the relevant Act, which mandates that a protection visa can only be granted if the applicant is physically present within Australia.

The Tribunal's reasoning focused on the jurisdictional prerequisite of the applicant's presence in Australia. Movement records indicated that the applicant had left Australia in September 2018. The Tribunal notified the applicant of this information and invited comment, but no response was received. Consequently, the Tribunal was satisfied that the applicant was not in Australia at the time of the decision. As this fundamental criterion under section 36(2) was not met, the Tribunal concluded that a protection visa could not be granted, rendering it unnecessary to consider the substantive grounds of the applicant's protection claim. The Tribunal affirmed the decision not to grant the protection visa.