2013680 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa by a citizen of China. The applicant had departed 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 requires the decision maker to be satisfied that the prescribed criteria for the visa have been met under section 65(1).

The Tribunal reasoned that a protection visa can only be granted if the applicant is physically present in Australia. Movement records indicated that the applicant had left Australia in October 2022. The Tribunal notified the applicant of this information and invited comment, but no response was received. Consequently, the Tribunal was satisfied that the applicant was not in Australia and therefore did not meet the requirements of section 36(2). As this threshold criterion was not met, 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 protection visa.