2012680 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant who had departed Australia. The dispute arose because the applicant's movement records indicated they were no longer in Australia, which is a prerequisite for the grant of a protection visa.

The primary legal issue before the Tribunal was whether the applicant met the criterion that they must be a non-citizen in Australia at the time of the decision, as stipulated by section 36(2) of the relevant Act. The Tribunal also considered whether it was necessary to assess the substantive claims for protection given the applicant's absence from Australia.

The Tribunal reasoned that section 65(1) of the Act requires that prescribed criteria for a visa be satisfied, and section 36(2) specifically mandates that an applicant for a protection visa must be in Australia. Movement records showed the applicant had left Australia on 29 October 2021. The Tribunal had invited the applicant to comment on this information by 31 January 2022, but no response was received. Consequently, the Tribunal was satisfied that the applicant was not in Australia and therefore did not meet the criterion under section 36(2). As this fundamental requirement was not met, the Tribunal concluded it was unnecessary to consider the applicant's substantive case for protection.

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