1912473 (Refugee)

The Administrative Appeals Tribunal considered a review application by an applicant seeking a protection visa. The applicant, who was not in Australia, had previously applied for a protection visa. The dispute centred on whether the applicant met the eligibility criteria for such a visa, particularly the requirement of being within Australia.

The primary legal issue before the Tribunal was whether the applicant satisfied the criterion for a protection visa that they must be a non-citizen in Australia, as stipulated by section 36(2) of the relevant Act. The Tribunal also had to determine whether it was appropriate to proceed with the review and make a decision without the applicant's attendance at a scheduled hearing, given the applicant's absence from Australia.

The Tribunal reasoned that a protection visa can only be granted if the applicant is physically present in Australia. Evidence from movement records indicated that the applicant had departed Australia. The applicant's representative confirmed this information. Despite being invited to attend a hearing via video link, neither the applicant nor their representative appeared. Consequently, the Tribunal was satisfied that the applicant did not meet the fundamental requirement of being in Australia and therefore could not be granted a protection visa. The Tribunal affirmed the decision not to grant the protection visa.