1832393 (Refugee)

The applicant sought a protection visa, but the Tribunal affirmed the decision not to grant this visa. The dispute arose because the applicant had departed Australia and therefore did not meet the criterion of being a non-citizen in Australia at the time of the decision. The decision was made by Alison Mercer, a Member of the Tribunal.

The primary legal issue before the Tribunal was whether the applicant satisfied the criteria for a protection visa, specifically the requirement under section 36(2) of the Act that the applicant must be a non-citizen in Australia. The Tribunal also considered whether it had properly notified the applicant of concerns regarding his location and afforded him an opportunity to respond.

The Tribunal reasoned that section 65(1) of the Act mandates that a visa may only be granted if the prescribed criteria are satisfied. It noted that movement records indicated the applicant had left Australia in February 2019. Pursuant to section 424A of the Act, the Tribunal communicated with the applicant via his nominated email address on 29 May 2019, advising him that his departure from Australia meant he could not be granted a protection visa and inviting him to comment or request an extension by 12 June 2019. As no response was received by the due date, and no further communication was forthcoming, the Tribunal concluded that the applicant did not satisfy the criterion of being in Australia. Consequently, it was unnecessary to consider the substantive grounds of his protection claim.