2201194 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant who was not in Australia. The dispute arose because the applicant had departed Australia and was therefore outside the migration zone, a prerequisite for the grant of a protection visa. The Tribunal had previously communicated with the applicant regarding his absence from Australia and invited him to a hearing.

The primary legal issue before the Tribunal was whether it could grant a protection visa to an applicant who was not physically present in Australia. Section 36(2) of the Migration Act 1958 (Cth) stipulates that a criterion for a protection visa is that the applicant must be a non-citizen in Australia. The Tribunal also had to consider whether it had taken all reasonable steps to engage with the applicant and provide him with an opportunity to present his case, particularly in light of his claims regarding his migration agent and his intention to return to Australia.

The Tribunal reasoned that the requirement for an applicant to be in Australia for the grant of a protection visa, as stipulated by section 36(2) of the Act, is a mandatory criterion that must be satisfied. The Tribunal noted that movement records indicated the applicant had left Australia. Despite the applicant's assertions about his migration agent and his intention to return, the Tribunal found that it had made reasonable efforts to contact the applicant and schedule a hearing, including providing him with an opportunity to comment on the information that he was not in Australia. The Tribunal concluded that it was not in a position to investigate claims of fraud against migration agents, as this fell outside its remit. Consequently, the Tribunal proceeded on the information before it, which established that the applicant was not in Australia.

The Tribunal affirmed the decision not to grant the applicant a protection visa, as the applicant did not meet the fundamental criterion of being in Australia.