1810888 (Refugee)

This matter concerned an application for a protection visa by an applicant from China. The applicant had previously left Australia, and the decision under review was an affirmation of a decision not to grant the visa. The case was heard by Member Linda Holub of the Tribunal.

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

The Tribunal reasoned that under section 65(1) of the Act, a visa can only be granted if the prescribed criteria are met. The Tribunal's records, supported by movement data, indicated that the applicant had departed Australia in August 2019. Consequently, the applicant was not physically present in Australia at the time of the decision. The Tribunal had notified the applicant of this information and invited comment, but no response was received. Based on these circumstances, the Tribunal was satisfied that the applicant did not meet the criterion of being in Australia, as required by section 36(2).

As the applicant failed to satisfy this fundamental jurisdictional requirement, the Tribunal determined it was 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.