2116033 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant from East Timor who was not in Australia. The dispute concerned whether the applicant met the criteria for the grant of a protection visa, specifically the requirement of being within 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. This criterion is a prerequisite for the grant of a protection visa.

The Tribunal reasoned that section 36(2) of the Act mandates that an applicant must be in Australia to be eligible for a protection visa. Evidence from movement records indicated that the applicant had departed Australia in December 2023. The Tribunal had notified the applicant of this information and invited comment, but no response was received. Consequently, the Tribunal was satisfied that the applicant was not in Australia and therefore did not meet the essential criterion under section 36(2). As this criterion was not met, the Tribunal found it unnecessary to consider the substantive grounds of the applicant's protection claim.

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