2108735 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant who had left Australia. The core dispute revolved around the applicant's physical presence in Australia, a prerequisite for the grant of such a visa.

The Tribunal was required to determine whether the applicant satisfied the criterion that they be a non-citizen in Australia, as stipulated by section 36(2) of the relevant Act. This involved assessing whether the applicant's departure from Australia rendered them ineligible for a protection visa.

The Tribunal reasoned that a protection visa can only be granted if the applicant is physically present in Australia. Movement records indicated the applicant had left Australia in July 2023. Despite being notified of this and invited to comment, the applicant confirmed they were in Malaysia and not returning for some time, and also inquired about accessing superannuation. The Tribunal scheduled a hearing to discuss the implications of section 36(2), but the applicant did not attend or respond to communications. The Tribunal concluded it had taken reasonable steps to engage the applicant and, based on the available information, found the applicant was not in Australia. Consequently, the applicant did not satisfy the criterion under section 36(2).

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