1932968 (Refugee)

The Administrative Appeals Tribunal, with Member Mary Urquhart presiding, considered an application for a protection visa. The applicant sought this visa, but the Tribunal was required to determine whether the applicant met the prescribed criteria for its grant.

The central legal issue before the Tribunal was whether the applicant satisfied the criterion that they must be a non-citizen *in Australia* to be eligible for a protection visa, as stipulated by section 36(2) of the relevant Act. This required the Tribunal to ascertain the applicant's physical location at the time of the decision.

The Tribunal's reasoning focused on the applicant's own admissions and available movement records. These indicated that the applicant had departed Australia in April 2020 and had returned to Malaysia. The applicant had been notified of this fact and invited to comment, providing reasons for their departure including financial difficulties, the refusal of a bridging visa, a sick sister, and the economic impact of the "virus thing" in Malaysia. Crucially, the applicant agreed they were outside Australia and lacked a valid visa to re-enter. Consequently, the Tribunal concluded that the applicant did not meet the fundamental requirement of being in Australia, rendering them ineligible for a protection visa. The Tribunal affirmed the decision not to grant the visa.