1810692 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant from China. The dispute arose because the applicant had departed Australia, and the Tribunal was unable to grant a visa to a person who was not physically present in the country.

The primary legal issue before the Tribunal was whether the applicant satisfied the criteria for a protection visa, specifically the requirement under section 36(2) of the Act that the applicant must be a non-citizen in Australia. The Tribunal also had to consider how to proceed when the applicant was no longer in Australia and had not responded to the Tribunal's communication.

The Tribunal reasoned that section 65(1) of the Act mandates that a visa can only be granted if the prescribed criteria are met. Crucially, section 36(2) requires the applicant to be in Australia. Movement records indicated the applicant had left Australia in June 2018. The Tribunal attempted to contact the applicant via the provided email address to discuss this information, but the email failed to deliver. Based on the available information, the Tribunal was satisfied that the applicant was not in Australia and therefore did not meet the criterion in section 36(2). Consequently, the Tribunal concluded it was unnecessary to assess the substantive grounds of the protection claim.

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