1723145 (Refugee)

The applicant, a citizen of China, sought review of a decision not to grant a protection visa. The dispute arose because the Department of Home Affairs records indicated the applicant was no longer in Australia and did not hold a current visa enabling their return. The Administrative Appeals Tribunal was tasked with determining whether the applicant met the criteria for a protection visa.

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. This criterion is a prerequisite for the grant of a protection visa under section 65(1) of the Act.

The Tribunal reasoned that, according to Department of Home Affairs records, the applicant had departed Australia in August 2019 and did not possess a valid visa for re-entry. The Tribunal communicated this information to the applicant, inviting comment, but received no response. Based on these circumstances, the Tribunal was satisfied that the applicant was not in Australia, and therefore did not meet the essential criterion under section 36(2). Consequently, the Tribunal found it unnecessary to consider the applicant's substantive claims for protection. The Tribunal affirmed the decision not to grant the protection visa.