1726812 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a citizen of China. The applicant had departed Australia, and the Tribunal was reviewing a decision not to grant the visa.

The primary legal issue before the Tribunal was whether the applicant satisfied the criterion for a protection visa that they must be a non-citizen in Australia. This criterion is stipulated by section 36(2) of the relevant Act.

The Tribunal reasoned that a protection visa can only be granted if the applicant is physically present in Australia. It noted that departmental records indicated the applicant was not in Australia and did not hold a visa permitting their return. The applicant was given an opportunity to respond to this information but failed to do so. Consequently, the Tribunal was satisfied that the applicant was not in Australia, and therefore did not meet the essential criterion under section 36(2) for the grant of a protection visa. As this threshold requirement was not met, the Tribunal found it unnecessary to consider the merits of the applicant's substantive claim for protection.

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