2008921 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a non-citizen. The dispute arose because the applicant had apparently departed Australia, which raised questions about their eligibility for the visa.

The primary legal issue before the Tribunal was whether the applicant met the criterion that they must be a non-citizen *in* Australia to be granted a protection visa, as stipulated by section 36(2) of the relevant Act. The Tribunal also had to determine if it was necessary to consider the applicant's substantive claims for protection given their apparent absence from Australia.

The Tribunal reasoned that section 65(1) of the Act requires a decision-maker to be satisfied that prescribed criteria for a visa have been met. Section 36(2) specifically mandates that an applicant for a protection visa must be in Australia. Movement records indicated the applicant had left Australia in October 2022. The Tribunal notified the applicant of this information and invited comment, but no response was received. Consequently, the Tribunal was satisfied the applicant was not in Australia, meaning they did not satisfy the criterion under section 36(2). As this fundamental requirement was not met, the Tribunal concluded it was unnecessary to assess the applicant's substantive case for protection.

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