1926840 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa by a citizen of South Africa. The applicant sought review of a decision not to grant her a protection visa.

The primary legal issue before the Tribunal was whether the applicant met the criterion for a protection visa that she must be a non-citizen in Australia. This criterion is stipulated by section 36(2) of the relevant Act, which requires the decision maker to be satisfied that the prescribed criteria for the visa have been met under section 65(1).

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 in November 2019. The Tribunal had notified the applicant of this information and invited comment, but the applicant did not respond to this invitation, although she later inquired about the status of her review. Based on these circumstances, the Tribunal was satisfied that the applicant was not in Australia. Consequently, the Tribunal concluded that the applicant failed to satisfy the criterion under section 36(2) and therefore could not be granted a protection visa. As this jurisdictional requirement was not met, the Tribunal found it unnecessary to consider the substantive grounds of her protection claim.

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