2118102 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa by an applicant from East Timor. The core dispute concerned whether the applicant met the eligibility criteria for the visa, specifically the requirement of being present in Australia.

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, for the grant of a protection visa. This determination was central to whether the Tribunal could proceed to consider the substantive grounds of the protection claim.

The Tribunal reasoned that a protection visa can only be granted if the applicant is physically present in Australia. Movement records indicated that the applicant had departed Australia in July 2023. The Tribunal had notified the applicant of this information and invited them to provide comments by a specified date. As no response was received, the Tribunal was satisfied that the applicant was not in Australia. Consequently, the applicant failed to meet the fundamental criterion under section 36(2), rendering it unnecessary to assess the merits of their protection claim. The Tribunal affirmed the decision not to grant the protection visa.