2213224 (Refugee)

The applicant, a non-citizen who had applied for a protection visa, sought review of a decision not to grant the visa. The dispute centred on whether the applicant met the fundamental criterion of being in Australia at the time of the decision. The matter was heard by Sean Baker, a Member of the Tribunal.

The primary legal issue before the Tribunal was whether the applicant satisfied the requirement under section 36(2) of the Act, which stipulates that an applicant for a protection visa must be a non-citizen in Australia. This criterion is a prerequisite for the grant of such a visa under section 65(1) of the Act.

The Tribunal's reasoning focused on the applicant's physical presence. Movement records indicated the applicant had departed Australia in November 2023. The applicant, when invited to comment, conceded she was outside Australia, having left to attend to her daughters' education in Laos. At a subsequent hearing, she confirmed her presence in Laos. The Tribunal was satisfied that the applicant was not in Australia, and therefore, she did not meet the essential criterion under section 36(2). Consequently, it was unnecessary for the Tribunal to consider the substantive grounds of her protection claim.

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