1715625 (Refugee)

The Administrative Appeals Tribunal 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 physical presence 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.

The Tribunal reasoned that a protection visa can only be granted if the applicant is physically present in Australia. Evidence from movement records indicated that the applicant had departed Australia in January 2019. The Tribunal contacted the applicant to inform them of this information and invite comment, but received no response. Consequently, the Tribunal was satisfied that the applicant was not in Australia, and therefore did not meet the criterion under section 36(2). As this threshold requirement was not met, the Tribunal found it unnecessary to consider the applicant's substantive claims for protection.

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