2004556 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a person from Bangladesh. The applicant had previously left Australia, and the Tribunal was reviewing a decision not to grant 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. This criterion is stipulated by section 36(2) of the relevant Act, which mandates that a protection visa can only be granted if the applicant is physically present in Australia at the time of the decision.

The Tribunal reasoned that section 65(1) of the Act requires a decision-maker to be satisfied that all prescribed criteria for a visa have been met. It noted that movement records indicated the applicant had departed Australia in January 2021. The Tribunal had notified the applicant of this information and invited comment, but no response was received. Consequently, the Tribunal was satisfied that the applicant was not in Australia and therefore did not meet the fundamental criterion under section 36(2). As this essential requirement was not met, the Tribunal concluded it was unnecessary to consider the applicant's substantive claims for protection.

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