2014354 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa by a citizen of China. The applicant had previously left Australia, and the Tribunal sought to ascertain their current location to determine eligibility for 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, as stipulated by section 36(2) of the relevant Act. This required the Tribunal to determine the applicant's physical presence within Australia at the time of the decision.

The Tribunal reasoned that a protection visa can only be granted to an applicant who is physically present in Australia. Movement records indicated that the applicant had departed Australia in May 2021. The Tribunal notified the applicant of this information and invited them to provide comments by a specified date. As no response was received by the Tribunal, it was satisfied that the applicant was no longer in Australia. Consequently, the applicant failed to satisfy the criterion under section 36(2) of the Act, rendering it unnecessary for the Tribunal to consider the substantive grounds of the protection claim.

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