2109138 (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, particularly in light of their absence from the country.

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 Migration Act 1958 (Cth), for the grant of a protection visa. The Tribunal also considered whether it was necessary to assess the applicant's substantive claims for protection given their circumstances.

The Tribunal reasoned that movement records indicated the applicant had left Australia in January 2023. Consequently, the applicant was not physically present in Australia, failing to meet the fundamental criterion under section 36(2) of the Act. The Tribunal had invited the applicant to comment on this information, providing a deadline and an option to request an extension, but received no response. As the applicant was not in Australia, the Tribunal concluded that it was unnecessary to consider the substantive grounds of their protection claim. The Tribunal affirmed the decision not to grant the applicant a protection visa.