1836365 (Refugee)

The applicant, a citizen of China, sought a protection visa. The dispute arose when the Department of Home Affairs records indicated the applicant had departed Australia in January 2020 and did not hold a current Australian visa. The Tribunal, constituted by Meredith Jackson, was tasked with determining whether the applicant met the criteria for a protection visa.

The primary legal issue before the Tribunal was whether the applicant satisfied the criterion that they must be a non-citizen in Australia to be granted a protection visa, as stipulated by section 36(2) of the relevant Act. The Tribunal also considered whether the applicant's response to a notification about their status constituted a valid application or request for consideration of their circumstances.

The Tribunal reasoned that section 65(1) of the Act requires a decision-maker to be satisfied that prescribed criteria for a visa have been met. Crucially, section 36(2) mandates that an applicant for a protection visa must be in Australia. The Department's records, which the Tribunal accepted, showed the applicant had left Australia and did not possess a visa enabling their return. The applicant's email response, stating "I'm sorry I wrote back so late! Can I apply to return to Australia? Because I am a breast cancer patient and need to return to Australia for treatment," confirmed their departure and inability to return. Consequently, the Tribunal concluded the applicant did not satisfy the requirement of being in Australia and therefore could not be granted a protection visa.

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