2003703 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant who was not in Australia. The dispute centred on whether the applicant met the eligibility criteria for the visa, specifically the requirement of being physically present within Australia.

The primary legal issue before the Tribunal was whether the applicant satisfied 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 also had to determine whether it was appropriate to proceed to a decision without further input from the applicant, given their absence from Australia.

The Tribunal reasoned that under section 65(1) of the Act, a visa can only be granted if the prescribed criteria are met. It found, based on movement records, that the applicant had departed Australia and was therefore not physically present within the migration zone. Despite being notified of this information and invited to comment under section 424A of the Act, the applicant did not respond. Consequently, the Tribunal was satisfied that the applicant did not meet the fundamental criterion of being in Australia and thus could not be granted a protection visa. The Tribunal affirmed the decision not to grant the protection visa.