1725151 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant from China. The applicant had departed Australia, and the Tribunal's decision under review concerned the refusal of this visa application.

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 a non-citizen *in* Australia. The Tribunal also considered whether it was necessary to assess the applicant's substantive claims for protection given the preliminary issue.

The Tribunal reasoned that under section 36(2) of the relevant Act, a protection visa can only be granted if the applicant is physically present in Australia. Movement records indicated the applicant had left Australia in November 2019. The Tribunal communicated this information to the applicant, inviting comment by 31 December 2019, but received no response. Consequently, the Tribunal was satisfied that the applicant was not in Australia and therefore did not meet the statutory criterion for the visa.

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