1810771 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a citizen of China. The applicant was not in Australia at the time of the Tribunal's decision, having departed the migration zone in September 2019. The Tribunal had previously notified the applicant that its records indicated she was not in Australia and therefore ineligible for a protection visa, inviting her to respond by 9 March 2020. No response was received.

The primary 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. This requirement is stipulated by section 36(2) of the relevant Act.

The Tribunal reasoned that section 65(1) of the Act mandates that a visa may only be granted if the prescribed criteria are satisfied. As section 36(2) requires the applicant to be in Australia, and the Tribunal was satisfied, based on movement records and the lack of a response from the applicant, that she was not in Australia, she failed to meet this essential criterion. Consequently, the Tribunal found it unnecessary to consider the substantive grounds of the applicant's protection claim.

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