1824211 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant from Taiwan. The dispute arose because the applicant had departed Australia, and the Tribunal was unable to grant a visa to a person who was not physically present in the country.

The primary legal issue before the Tribunal was whether the applicant satisfied the criterion that they must be a non-citizen in Australia for the grant of a protection visa, as stipulated by section 36(2) of the relevant Act. The Tribunal also had to determine if it was necessary to consider the substantive grounds of the protection claim given the applicant's absence from Australia.

The Tribunal reasoned that under section 65(1) of the Act, a visa can only be granted if prescribed criteria are met. Section 36(2) specifically requires the applicant to be in Australia. Movement records indicated the applicant had left Australia in October 2018. The Tribunal had communicated this information to the applicant, inviting comment, but received no response. Consequently, the Tribunal was satisfied the applicant was not in Australia and therefore did not meet the criterion under section 36(2). As this fundamental requirement was not met, the Tribunal concluded it was unnecessary to assess the applicant's substantive claims for protection.

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