2101833 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant who had departed Australia. The dispute concerned whether the applicant met the eligibility criteria for the visa.

The primary legal issue before the Tribunal was whether the applicant satisfied the criterion that they be a non-citizen *in* Australia, as stipulated by section 36(2) of the relevant Act, for the grant of a protection visa.

The Tribunal reasoned that section 65(1) of the Act requires a decision maker to be satisfied that prescribed criteria for a visa have been met, and section 36(2) specifically mandates that an applicant for a protection visa must be in Australia. Movement records indicated the applicant had left Australia in May 2022. The Tribunal notified the applicant of this information and invited comment, 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), rendering them ineligible for a protection visa.

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