2100934 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa by an applicant from India. The dispute arose because the applicant had left Australia, and the Tribunal was therefore unable to grant the visa.

The primary legal issue before the Tribunal was whether the applicant satisfied the criteria for a protection visa, specifically the requirement that the applicant be a non-citizen present in Australia. The Tribunal also considered whether it was necessary to assess the applicant's substantive claims for protection given their absence from Australia.

The Tribunal reasoned that under section 65(1) of the Act, a visa can only be granted if the prescribed criteria are met, and section 36(2) of the Act stipulates that a criterion for a protection visa is that the applicant must be in Australia. Movement records indicated the applicant had departed Australia in September 2021. The Tribunal had invited the applicant to comment on this information, providing a deadline of 28 July 2022, but received no response. Consequently, the Tribunal was satisfied that the applicant was not in Australia and therefore did not meet the requirements of section 36(2).

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