1827022 (Refugee)

The Administrative Appeals Tribunal (AAT) considered the case of an applicant seeking a protection visa. The dispute arose because the applicant was not physically present in Australia, which is a prerequisite for the grant of such a visa under the Migration Act 1958 (Cth). The Tribunal affirmed the decision not to grant the visa.

The primary legal issue before the Tribunal was whether the applicant met the criterion stipulated in section 36(2) of the Migration Act 1958 (Cth), which requires an applicant for a protection visa to be in Australia. The Tribunal also had to consider the applicant's explanation for her departure from Australia and her desire to return.

The Tribunal reasoned that section 65(1) of the Act mandates that a visa can only be granted if the prescribed criteria are satisfied, and section 36(2) specifically requires the applicant to be in Australia. Movement records confirmed the applicant had departed Australia in November 2019. While the applicant provided a detailed explanation for her temporary return to Malaysia to attend to compulsory court matters regarding matrimonial properties, and attached supporting legal documentation, this did not alter the fundamental requirement of her physical presence in Australia for the protection visa application to be considered. The Tribunal clarified that it had no power to grant a visa for her return to Australia, its jurisdiction being limited to reviewing the refusal of the protection visa application.

Consequently, the Tribunal affirmed the decision not to grant the applicant a protection visa, as she did not meet the essential criterion of being in Australia at the time of the decision.