2014957 (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 was no longer physically present in Australia, which is a prerequisite for the grant of such a visa.

The primary legal issue before the Tribunal was whether the applicant satisfied 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 had to determine the effect of the applicant's departure from Australia on their eligibility for the visa.

The Tribunal reasoned that under section 65(1) of the Act, a visa can only be granted if the prescribed criteria are met. Section 36(2) specifically requires the applicant to be in Australia. Movement records indicated the applicant had left Australia in April 2021. The Tribunal communicated this information to the applicant, inviting comment by 1 October 2021, but received no response. 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 criterion was not met, the Tribunal found it unnecessary to consider the substantive grounds of the applicant's protection claim.

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