1800859 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa by a citizen of China. The applicant was not physically present in Australia, having departed in January 2019. The Tribunal sought to contact the applicant to advise that its records indicated she was not in Australia, a prerequisite for a protection visa, and invited her to provide comment by 11 June 2019.

The central legal issue before the Tribunal was whether the applicant met the criteria for a protection visa, specifically the requirement that the applicant be a non-citizen in Australia, as stipulated by section 36(2) of the relevant Act. The Tribunal also had to determine if it was necessary to consider the substantive grounds of the protection claim given the applicant's absence from Australia.

The Tribunal reasoned that under section 65(1) of the Act, a visa can only be granted if the prescribed criteria are satisfied. As section 36(2) mandates that an applicant must be in Australia to be eligible for a protection visa, and movement records confirmed the applicant had left Australia, she did not meet this fundamental criterion. Despite attempts to contact the applicant for her response, no comment was received by the deadline. Consequently, the Tribunal was satisfied that the applicant was not in Australia and therefore could not satisfy the requirements for a protection visa.

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