2015339 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant who had departed Australia. The core of the dispute revolved around the applicant's physical presence in Australia at the time of the decision.

The 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 visa may only be granted if the applicant is physically present within Australia.

The Tribunal's reasoning focused on the applicant's location. Movement records indicated that the applicant had left Australia in July 2023. The Tribunal notified the applicant of this information and invited them to provide comments, but no response was received. Consequently, the Tribunal was satisfied that the applicant was not in Australia, and therefore did not meet the essential criterion under section 36(2). As this fundamental requirement was not met, the Tribunal concluded it was 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.