2207427 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant who was not in Australia. The dispute concerned whether the applicant met the eligibility criteria for the visa.

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). This criterion is a prerequisite for the grant of a protection visa.

The Tribunal reasoned that a protection visa can only be granted to an applicant who is physically present in Australia. Evidence, including movement records, indicated that the applicant had departed Australia. The Tribunal had notified the applicant under section 424A of the Act that their records showed they were not in Australia and invited comment. The applicant’s response did not address this specific point. 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 concluded it was unnecessary to consider the substantive grounds of the protection claim.

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