1913163 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an individual who had departed Australia. The dispute centred on whether the applicant met the eligibility criteria for the visa, specifically the requirement of being present in Australia.

The primary legal issue before the Tribunal was whether the applicant satisfied the criterion under section 36(2) of the Act, which stipulates that an applicant for a protection visa must be a non-citizen in Australia. This criterion is a prerequisite for the grant of such a visa under section 65(1) of the Act.

The Tribunal's reasoning was based on movement records indicating the applicant had left Australia. The Tribunal notified the applicant via email that their records showed they were not in Australia and did not hold a visa permitting re-entry, thus precluding the grant of a protection visa. The applicant was invited to respond by a specified date but provided no reply. Consequently, the Tribunal was satisfied that the applicant was not in Australia and therefore did not meet the requirements of section 36(2). As this criterion was not met, the Tribunal concluded it was unnecessary to consider the substantive grounds of the applicant's protection claim. The Tribunal affirmed the decision not to grant the protection visa.