1830036 (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 left Australia, and the Tribunal's records indicated this fact.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa, specifically the requirement that the applicant must be a non-citizen *in* Australia at the time of the decision. The Tribunal also needed 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 36(2) of the relevant Act, a protection visa can only be granted if the applicant is physically present in Australia. Movement records showed the applicant had departed Australia in November 2019. The Tribunal communicated this information to the applicant, inviting comment, but received no response. Consequently, the Tribunal was satisfied that the applicant was not in Australia and therefore did not meet the essential criterion for a protection visa. As this threshold requirement was not met, the Tribunal concluded it was unnecessary to assess the merits of the applicant's protection claim.

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