2005929 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant from 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 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 decision-maker is satisfied that the prescribed criteria have been 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 July 2023. The Tribunal communicated this information to the applicant, inviting comment, but the correspondence was returned undelivered. Based on these circumstances, the Tribunal was satisfied that the applicant was no longer in Australia. Consequently, the Tribunal concluded that the applicant failed to satisfy the requirement of being in Australia as mandated by section 36(2) of the Act, rendering them ineligible for a protection visa. The Tribunal found it unnecessary to consider the substantive grounds of the applicant's claim for protection.

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