1935298 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a non-citizen. The applicant had previously been in Australia but had departed the country. The Tribunal's records indicated the applicant was no longer in Australia, which raised a question about their eligibility for the visa.

The primary legal issue before the Tribunal was whether the applicant met the criterion for a protection visa that they must be a non-citizen in Australia, as stipulated by section 36(2) of the relevant Act. The Tribunal was required to determine if the applicant's physical presence in Australia was a prerequisite for the grant of the visa.

The Tribunal reasoned that section 36(2) of the Act expressly requires an applicant for a protection visa to be in Australia. Movement records indicated the applicant had left Australia in May 2024. The Tribunal notified the applicant of this information and invited them to respond, but no response was received. Consequently, the Tribunal was satisfied that the applicant was not in Australia and therefore did not meet the prescribed criteria for the visa. As a result, it was unnecessary for the Tribunal to consider the substantive grounds of the applicant's protection claim. The Tribunal affirmed the decision not to grant the protection visa.