1915877 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant who was not in Australia. The dispute centred on whether the applicant met the eligibility criteria for the 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 section is a prerequisite for the grant of a protection visa.

The Tribunal reasoned that under section 65(1) of the Act, a visa can only be granted if the prescribed criteria are met. As section 36(2) requires the applicant to be in Australia, and movement records indicated the applicant had departed Australia, they did not satisfy this fundamental criterion. The Tribunal had notified the applicant of this information and invited comment, but no response was received. Consequently, the Tribunal concluded that it was unnecessary to consider the substantive grounds of the protection claim.

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