2015329 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a citizen of China. The applicant had previously been in Australia but had departed the country. The Tribunal's decision under review was the refusal to grant the protection visa.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa, specifically the requirement that the applicant be a non-citizen *in* Australia. The Tribunal also considered whether it was necessary to assess the applicant's substantive claims for protection given the preliminary issue.

The Tribunal reasoned that under section 36(2) of the relevant Act, a protection visa can only be granted if the applicant is physically present in Australia. Movement records indicated the applicant had left Australia in January 2024. 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 threshold criterion for a protection visa. As this fundamental requirement was not met, the Tribunal concluded it was unnecessary to consider the applicant's substantive claims for protection.

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