1728892 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa by an individual from China. The applicant's claim for a protection visa was affirmed by the Tribunal, meaning the decision not to grant the visa was upheld.

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 at the time of the decision. The Tribunal also considered whether it was necessary to assess the substantive grounds of the protection claim.

The Tribunal's reasoning was based on section 65(1) and section 36(2) of the relevant Act, which stipulate that a protection visa can only be granted if the applicant is in Australia. Movement records indicated that the applicant had departed Australia in March 2019. The Tribunal communicated this information to the applicant, inviting comment, but received no response. Consequently, the Tribunal was satisfied that the applicant was not in Australia and therefore did not meet the criterion under section 36(2). As this fundamental requirement was not met, the Tribunal concluded it was unnecessary to consider the applicant's substantive claims for protection.

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