1916599 (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 met the criterion that they must be a non-citizen *in* Australia to be eligible for a protection visa, as stipulated by section 36(2) of the relevant Act.

The Tribunal reasoned that section 65(1) of the Act requires prescribed criteria to be satisfied for a visa grant. It noted that section 36(2) specifically mandates that an applicant for a protection visa must be in Australia. Movement records indicated the applicant had departed Australia in April 2020. 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 essential criterion under section 36(2). As this 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.