2208534 (Refugee)

The Administrative Appeals Tribunal (AAT) considered an application for a protection visa made by an applicant who had departed Australia. The dispute concerned whether the applicant met the criteria for the grant of a protection visa, specifically the requirement of being in 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, for the grant of a protection visa. This criterion is a prerequisite for a visa decision maker to be satisfied under section 65(1) that the prescribed criteria have been met.

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 left Australia in September 2023 while holding a Bridging visa A. The Tribunal notified the applicant under section 424A that its records showed they were not in Australia and did not hold a visa permitting re-entry, thus precluding the grant of a protection visa. As no response was received from the applicant by the specified deadline, the Tribunal proceeded to make a decision without a hearing. Based on the evidence of departure and the lack of a return visa, the Tribunal concluded that the applicant did not satisfy the requirement of being in Australia. Consequently, 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.