2008782 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant from Iraq. The applicant had departed Australia and the decision under review was an affirmation of a previous 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.

The Tribunal reasoned that a protection visa can only be granted if the applicant is physically present in Australia. Movement records indicated that the applicant had left Australia in May 2021. The applicant confirmed this departure in an email, stating he left for Iraq to attend to family health matters and was aware that his bridging visa would not permit re-entry. He also indicated he lacked a valid passport but hoped to obtain one to apply for a new visa to re-enter Australia. Based on this evidence, the Tribunal was satisfied that the applicant was not in Australia and therefore did not satisfy the criterion under section 36(2). Consequently, 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 applicant a protection visa.