1911381 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a citizen of China. The applicant sought review of a decision not to grant the 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 prescribed criteria are satisfied. It noted that section 36(2) specifically requires the applicant to be in Australia. Movement records indicated the applicant had departed Australia in May 2022. The Tribunal notified the applicant of this information and invited comment, but received no response. 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 essential criterion was not met, the Tribunal found 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.