1721943 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a citizen of China. The applicant had left Australia on 12 December 2017 and had not re-entered the country since that date. The Department of Home Affairs' movement records indicated the applicant was not in Australia.

The primary legal issue before the Tribunal was whether the applicant satisfied the criteria for a protection visa, specifically the requirement under section 36(2) of the Migration Act 1958 (Cth) that the applicant be a non-citizen in Australia.

The Tribunal reasoned that a protection visa can only be granted if the applicant is physically present in Australia. As the movement records clearly showed the applicant had departed Australia and had not returned, the Tribunal concluded that the applicant did not meet this fundamental criterion. The Tribunal had notified the applicant of this issue and invited a response, but no response was received. Consequently, the Tribunal affirmed the decision not to grant the protection visa, finding it unnecessary to consider the substantive grounds of the protection claim.