1909593 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a citizen of China. The applicant had previously been in Australia but had departed the country. The Tribunal's decision under review was to affirm the refusal of the protection visa.

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

The Tribunal reasoned that section 65(1) of the Act mandates that a visa can only be granted if the prescribed criteria are satisfied. It noted that section 36(2) specifically requires an applicant for a protection visa to be in Australia. Movement records indicated that the applicant had left Australia in January 2023. The Tribunal communicated this information to the applicant, inviting comment, but received no response. Consequently, the Tribunal was satisfied that the applicant was not in Australia and therefore did not meet the essential criterion under section 36(2). As a result, it was unnecessary for the Tribunal to consider the applicant's substantive claims for protection.

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