1836862 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant who had departed Australia. The dispute arose because the applicant was no longer physically present in Australia, which is a prerequisite for the grant of such a visa.

The primary legal issue before the Tribunal was whether the applicant satisfied the criterion that they be a non-citizen *in* Australia, as stipulated by section 36(2) of the relevant Act. This required the Tribunal to determine the applicant's physical location at the time of the decision.

The Tribunal reasoned that section 65(1) of the Act mandates that a visa can only be granted if prescribed criteria are met. It found, based on movement records, that the applicant had left Australia in December 2019. The Tribunal had 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 criterion under section 36(2). As this fundamental criterion was not met, the Tribunal concluded it was unnecessary to consider the substantive grounds of the protection claim. The Tribunal affirmed the decision not to grant the protection visa.