2105472 (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 eligibility 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 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 also had to determine if it was necessary to consider the substantive grounds of the applicant's protection claim.

The Tribunal reasoned that a protection visa can only be granted if the applicant is physically present in Australia. Evidence indicated that the applicant had left Australia in November 2022. The Tribunal notified the applicant of this information and invited them to provide comment, but no response was received. 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 fundamental requirement was not met, the Tribunal concluded it was unnecessary to assess the applicant's substantive case for protection.

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