2015735 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant from China. The applicant was not in Australia at the time of the decision. The Tribunal was required to determine whether the applicant met the criteria for the grant of a protection visa.

The central legal issue before the Tribunal was whether the applicant satisfied the criterion that they be a non-citizen in Australia, as stipulated by section 36(2) of the Migration Act 1958 (Cth). This section is a mandatory requirement for the grant of a protection visa.

The Tribunal reasoned that a protection visa can only be granted if the applicant is physically present in Australia. Evidence from movement records indicated that the applicant had departed Australia. 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 essential criterion under section 36(2) of the Act. As this criterion was not met, the Tribunal concluded it was unnecessary to consider the substantive claims for protection. The Tribunal affirmed the decision not to grant the applicant a protection visa.