1927000 (Refugee)

The Administrative Appeals Tribunal, with Member Alison Murphy presiding, considered an application for a protection visa by a Lebanese national. The applicant was not physically present in Australia at the time of the Tribunal's decision, having departed the country in November 2023. The core of the dispute revolved around the applicant's eligibility for a protection visa while residing outside of Australia.

The primary legal issue before the Tribunal was whether the applicant met the prescribed criteria for a protection visa, specifically under section 36(2) of the relevant Act. This section stipulates that a criterion for a protection visa is that the applicant must be a non-citizen *in Australia*. Consequently, the Tribunal was required to determine if the applicant's absence from Australia precluded them from satisfying this fundamental requirement.

The Tribunal's reasoning centred on the unambiguous wording of section 36(2) of the Act, which mandates that an applicant must be in Australia to be eligible for a protection visa. Movement records confirmed the applicant's departure from Australia and return to Lebanon. Despite acknowledging the applicant's difficult personal circumstances for leaving Australia, the Tribunal found that the applicant's physical absence from the country was an insurmountable barrier to meeting the visa criteria. The applicant's representative also conceded that a protection visa could not be granted to someone outside Australia.

Accordingly, the Tribunal affirmed the decision not to grant the applicant a protection visa, as the applicant failed to satisfy the essential criterion of being in Australia. The Tribunal concluded that it was unnecessary to consider the substantive grounds of the applicant's protection claim due to this jurisdictional impediment.