1617523 (Refugee)

The Administrative Appeals Tribunal (AAT) considered an application for a Protection visa by an applicant from China. The dispute centred on whether the applicant met the eligibility criteria for the visa, specifically concerning their location.

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 Migration Act 1958 (Cth), for the grant of a Protection visa.

The Tribunal reasoned that under section 65(1) of the Act, a visa can only be granted if the prescribed criteria are met. It noted that section 36(2) requires an applicant for a Protection visa to be in Australia. Movement records indicated the applicant had departed Australia in May 2019 and was therefore not in Australia. The Tribunal had notified the applicant of this information and invited comment, but no response was received. Consequently, the Tribunal was satisfied that the applicant did not meet the criterion of being in Australia and thus could not be granted a Protection visa. The Tribunal affirmed the decision not to grant the visa.