1810928 (Refugee)

The applicant, a citizen of China, sought review of a decision not to grant her a protection visa. The dispute arose because the applicant had left Australia, and the Tribunal was unable to grant a visa to a person who was not physically present in the country. The decision was made by Alison Murphy, a Member of the Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the criterion for a protection visa that she must be a non-citizen in Australia. This required the Tribunal to determine the applicant's location and, if she was outside Australia, whether she could still satisfy the visa requirements.

The Tribunal reasoned that under section 36(2) of the relevant Act, a protection visa can only be granted to an applicant who is in Australia. Movement records indicated that the applicant had departed Australia in December 2019. The Tribunal communicated this information to the applicant, inviting her to respond, but received no reply. Consequently, the Tribunal was satisfied that the applicant was not in Australia and therefore did not meet the essential criterion for the grant of a protection visa. As this threshold requirement was not met, the Tribunal found it unnecessary to consider the substantive grounds of her protection claim.

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