1811481 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa by an individual from China. The core of the dispute revolved around the applicant's presence in Australia, which is a prerequisite for the grant of such a visa.

The Tribunal was required to determine whether the applicant satisfied the criterion that they be a non-citizen in Australia, as stipulated by section 36(2) of the relevant Act. This determination was crucial because, under section 65(1) of the Act, a visa can only be granted if all prescribed criteria are met.

The Tribunal's reasoning focused on the fact that movement records indicated the applicant had departed Australia in January 2019. Consequently, the Tribunal communicated with the applicant on 29 May 2019, informing them of this information and inviting written comment by 12 June 2019. As no response was received, the Tribunal was satisfied that the applicant was no longer in Australia. This finding meant the applicant failed to satisfy the criterion under section 36(2) of the Act, rendering them ineligible for a protection visa. The Tribunal therefore affirmed the decision not to grant the visa, without needing to consider the substantive grounds of the protection claim.