1722270 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a citizen of China. The applicant had departed Australia in October 2019 and, upon his return to China, experienced his mother's illness and subsequent death. He sought to return to Australia but was prevented from doing so by the COVID-19 pandemic and the fact that his previous visa did not permit re-entry. The Tribunal affirmed the decision of the Department of Home Affairs not to grant the protection visa.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa, specifically the requirement that the applicant must be in Australia at the time of the decision. The Tribunal also considered the applicant's explanation for his departure and his inability to return, as well as his claims of persecution in China due to his Falun Gong beliefs.

The Tribunal reasoned that section 36(2) of the *Migration Act 1958* (Cth) mandates that an applicant for a protection visa must be a non-citizen who is in Australia. Movement records confirmed the applicant had left Australia and did not hold a visa allowing his return. Despite the applicant's submissions regarding his mother's death, his inability to return due to the pandemic, and his fear of persecution in China, the Tribunal found it had no discretion to waive the statutory requirement that the applicant be physically present in Australia. Consequently, the Tribunal concluded that the applicant did not satisfy this essential criterion for a protection visa.

As the applicant did not meet the threshold requirement of being in Australia, the Tribunal determined it was unnecessary to consider the substantive grounds of his protection claim. The Tribunal affirmed the decision not to grant the protection visa.