1900707 (Refugee)

The applicant, a citizen of China, sought a protection visa. The dispute arose when the Tribunal, constituted by Member Paul Windsor, considered the applicant's eligibility for the visa. The core of the disagreement concerned the applicant's physical presence in Australia at the time of the decision.

The primary legal issue before the Tribunal was whether the applicant met the prescribed criteria for 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 also had to determine if it was necessary to consider the applicant's substantive claims for protection, given the preliminary issue of their location.

The Tribunal reasoned that section 65(1) of the Act mandates that a visa can only be granted if the prescribed criteria are satisfied. Crucially, section 36(2) requires the applicant to be physically present in Australia. Movement records indicated that the applicant had departed Australia in March 2020. The Tribunal notified the applicant of this information and invited comment, but no response was received. Consequently, the Tribunal was satisfied that the applicant was not in Australia, and therefore did not meet the criterion under section 36(2). As this threshold requirement was not met, the Tribunal concluded it was unnecessary to assess the applicant's substantive claims for protection.

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