2208339 (Refugee)

The applicant sought a protection visa, but the Administrative Appeals Tribunal (AAT) affirmed the decision not to grant the visa. The dispute centred on the applicant's physical presence in Australia, which is a prerequisite for the grant of a protection visa.

The primary legal issue before the Tribunal was whether the applicant met the criterion that they must be a non-citizen in Australia, as stipulated by section 36(2) of the relevant Act. This required the Tribunal to determine the applicant's location at the time of the decision.

The Tribunal reasoned that section 65(1) of the Act mandates that a visa can only be granted if prescribed criteria are satisfied, and section 36(2) specifically requires the applicant to be in Australia. Movement records indicated the applicant had left Australia in December 2023. The Tribunal 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, thus failing to meet the criterion under section 36(2). As this fundamental requirement was not met, the Tribunal deemed it unnecessary to consider the substantive grounds of the applicant's protection claim. The Tribunal affirmed the decision not to grant the protection visa.