1617366 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant from China. The central dispute concerned whether the applicant met the threshold requirement for the grant of a protection visa, specifically whether they were present in Australia.

The Tribunal was required to determine if 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 section 65(1) of the Act mandates that a visa can only be granted if the prescribed criteria are met. It found, based on movement records, that the applicant had departed Australia on 21 January 2018 and was therefore not present in the country. Despite being notified of this fact and invited to comment, the applicant did not respond. Consequently, the Tribunal was satisfied that the applicant did not meet the criterion of being in Australia, rendering it unnecessary to consider the substantive grounds of their protection claim. The Tribunal affirmed the decision not to grant the protection visa.