2016447 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant who had departed Australia. The dispute centred on whether the applicant met the criteria for the visa, specifically the requirement of being in Australia.

The primary legal issue before the Tribunal was whether the applicant satisfied the criterion for a protection visa that they must be a non-citizen in Australia, as stipulated by section 36(2) of the relevant Act. This required the Tribunal to determine the applicant's location at the time of the decision.

The Tribunal reasoned that movement records indicated the applicant had left Australia in August 2022. Following this, the Tribunal notified the applicant of this information and invited them to comment, but no response was received. Based on the evidence of the applicant's departure and the lack of any response to the invitation to comment, the Tribunal was satisfied that the applicant was not in Australia. Consequently, the Tribunal concluded that the applicant did not satisfy the criterion under section 36(2) and therefore could not be granted a protection visa. As this fundamental criterion was not met, 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 protection visa.