1910391 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a citizen of China. The applicant had previously left Australia, and the Tribunal was reviewing a decision not to grant the visa.

The primary legal issue before the Tribunal was whether the applicant satisfied 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, which mandates that a visa may only be granted if the prescribed criteria are met, including the applicant's presence in Australia.

The Tribunal's reasoning focused on the applicant's physical presence in Australia. Movement records indicated that the applicant had departed Australia in October 2019. The Tribunal notified the applicant of this information and invited comments, but no response was received. Consequently, the Tribunal was satisfied that the applicant was not in Australia, and therefore did not meet the essential requirement of section 36(2) for the grant of a protection visa. As this fundamental criterion was not met, the Tribunal deemed it unnecessary to consider the substantive grounds of the applicant's protection claim.

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