1918969 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a non-citizen. The applicant was not physically present in Australia, having departed the migration zone. The dispute centred on whether the applicant met the eligibility criteria for a protection visa, specifically the requirement of being in Australia.

The primary legal issue before the Tribunal was whether the applicant satisfied the criterion stipulated in section 36(2) of the Migration Act 1958 (Cth), which mandates that an applicant for a protection visa must be a non-citizen in Australia. The Tribunal also had to consider the applicant's responses to correspondence regarding his presence in Australia and his stated desire not to participate in the review process or seek protection within Australia.

The Tribunal reasoned that a protection visa can only be granted if the applicant is in Australia, as per section 36(2) of the Act. Movement records indicated the applicant had departed Australia. Despite the Tribunal's attempts to engage the applicant and clarify his position, including advising him of the implications of not being in Australia and inviting him to a hearing, the applicant expressed a desire to be relocated and not to receive further correspondence. He also stated he feared for his life in Australia, not Rwanda. Given the applicant's clear indications that he was not seeking protection in Australia and was not in Australia, the Tribunal concluded he did not meet the fundamental criterion under section 36(2). Consequently, the Tribunal affirmed the decision not to grant the protection visa.