1911031 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an individual who was not in Australia. The applicant had previously been in Australia but departed in December 2019. The Tribunal sought comments from the applicant regarding information indicating their absence from Australia, but no response was received.

The primary legal issue before the Tribunal was whether the applicant met the eligibility criteria for a protection visa. Specifically, the Tribunal had to determine if the applicant was a non-citizen in Australia, as stipulated by section 36(2) of the Migration Act 1958 (Cth).

The Tribunal reasoned that section 65(1) of the Act requires a decision-maker to be satisfied that all prescribed criteria for a visa have been met. As section 36(2) mandates that an applicant must be in Australia to be eligible for a protection visa, and movement records confirmed the applicant's departure from Australia, the Tribunal concluded that the applicant did not satisfy this fundamental criterion. Consequently, it was unnecessary for the Tribunal to consider the substantive grounds of the applicant's protection claim.

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