2000464 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a non-citizen who was not in Australia. The applicant had previously been in Australia but departed on 30 July 2023. The Tribunal sought to advise the applicant that, based on movement records, she was not in Australia and therefore ineligible for a protection visa, inviting her to comment on this information.

The primary legal issue before the Tribunal was whether the applicant satisfied the criteria for a protection visa, specifically the requirement that the applicant be a non-citizen in Australia. The Tribunal was also required to determine whether it had followed the correct procedural steps in reaching its decision, including the adequacy of its attempts to obtain the applicant's response to the information that she was outside the migration zone.

The Tribunal reasoned that section 36(2) of the Migration Act 1958 (Cth) mandates that an applicant for a protection visa must be a non-citizen in Australia. Movement records indicated the applicant had departed Australia, and no response was received from the applicant to the Tribunal's correspondence advising of this and inviting comment. Consequently, the Tribunal was satisfied that the applicant was not in Australia and therefore did not meet the prescribed criteria for the visa. The Tribunal applied section 65(1) of the Act, which states a visa may only be granted if the prescribed criteria are satisfied.

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