1916403 (Refugee)

This matter concerned an application for a protection visa by an applicant who had left Australia. The decision under review was made by the Refugee Tribunal, presided over by Member Melissa McAdam. The core of the dispute revolved around the applicant's physical presence in Australia at the time of the decision-making process.

The primary legal issue before the Tribunal was whether the applicant met the prescribed criteria for the grant of a protection visa, specifically the requirement that the applicant be a non-citizen *in* Australia. The Tribunal also considered whether it was necessary to assess the applicant's substantive claims for protection given the preliminary issue of their presence in Australia.

The Tribunal reasoned that under section 65(1) of the relevant Act, a visa can only be granted if the prescribed criteria are satisfied. Section 36(2) establishes that a criterion for a protection visa is that the applicant is a non-citizen in Australia. Movement records indicated the applicant had departed Australia in December 2019. The Tribunal 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 the applicant failed to satisfy the fundamental requirement of being in Australia, the Tribunal concluded that it was unnecessary to consider the applicant's substantive claims for protection. The Tribunal affirmed the decision not to grant the applicant a protection visa.