2217638 (Refugee)

This matter concerned an application for a protection visa by an applicant who was not in Australia. The decision under review was made by the Tribunal, presided over by Member Rosa Gagliardi. The core of the dispute was whether the applicant met the eligibility criteria for a protection visa, specifically concerning their physical location.

The primary legal issue before the Tribunal was whether the applicant satisfied the criterion for a protection visa that they must be a non-citizen in Australia. This criterion is stipulated by section 36(2) of the relevant Act, which dictates that a visa may only be granted if the prescribed criteria are met, and section 65(1) of the Act requires the decision-maker to be satisfied that these criteria have been satisfied.

The Tribunal's reasoning focused on the jurisdictional requirement of the applicant's presence in Australia. Movement records indicated that the applicant had departed Australia in June 2023. The Tribunal notified the applicant of this information and invited comment, but ultimately concluded that the applicant was not in Australia. Consequently, the Tribunal determined that the applicant failed to satisfy the criterion under section 36(2) of the Act, rendering them ineligible for a protection visa. As this threshold requirement was not met, the Tribunal found it unnecessary to consider the substantive grounds of the applicant's protection claim. The Tribunal affirmed the decision not to grant the applicant a protection visa.