1928078 (Refugee)

This matter concerned an application for a protection visa by a Saudi Arabian national. The applicant was not in Australia at the time of the Tribunal's decision, having departed the country in June 2022. The dispute arose because the applicant, despite claiming to have been a victim of persecution and violence in her home country and forced to leave Australia under duress from the Saudi Arabian government, was outside the migration zone.

The primary legal issue before the Tribunal was whether it could grant a protection visa to an applicant who was not physically present in Australia. This question turned on the interpretation of section 36(2) of the Migration Act 1958 (Cth), which prescribes that a criterion for a protection visa is that the applicant must be a non-citizen in Australia.

The Tribunal reasoned that section 65(1) of the Act mandates that a visa can only be granted if the prescribed criteria are satisfied. As section 36(2) explicitly requires the applicant to be in Australia for a protection visa, and movement records confirmed the applicant was outside the country, the Tribunal concluded it lacked the power to grant the visa. Despite acknowledging the applicant's difficult circumstances and her fear of persecution, the Tribunal found that the legislative requirement of being within Australia was a jurisdictional bar that could not be overcome, even if the departure was involuntary.

Consequently, the Tribunal affirmed the decision not to grant the applicant a protection visa. The Tribunal noted that it was not necessary to consider the substantive claims of persecution due to the applicant's absence from Australia.