1926232 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant from China. The applicant had departed Australia in July 2023 while holding a Bridging visa A. The core dispute revolved around whether the applicant met the eligibility criteria for a protection visa, specifically the requirement of being physically present in Australia.

The Tribunal was required to determine if the applicant satisfied the criteria for a protection visa, as stipulated by section 36(2) of the relevant Act, which mandates that an applicant for such a visa must be a non-citizen in Australia. A key legal issue was whether the applicant's physical location outside Australia precluded her from being granted the visa, and consequently, whether it was necessary to consider the substantive grounds of her protection claim.

The Tribunal reasoned that a protection visa can only be granted if the applicant is in Australia. Movement records indicated the applicant had left Australia and did not hold a visa that would permit her return. The Tribunal had invited the applicant to comment on this information, but no response was received. Applying section 424A of the Act, the Tribunal concluded that it was appropriate to make a decision without a hearing. As the applicant was not in Australia, she did not satisfy the criterion under section 36(2), rendering it unnecessary to assess the merits of her protection claim. The Tribunal affirmed the decision not to grant the protection visa.