2017973 (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, having departed the migration zone in August 2021. The Tribunal was tasked with determining whether the applicant met the criteria for a protection visa.

The central legal issue before the Tribunal was whether the applicant satisfied the criterion for a protection visa that the applicant must be a non-citizen in Australia. This criterion is stipulated by section 36(2) of the relevant Act.

The Tribunal reasoned that under section 65(1) of the Act, a visa can only be granted if the prescribed criteria are met. It noted that section 36(2) specifically requires an applicant for a protection visa to be in Australia. Movement records indicated the applicant had left Australia, and the applicant did not respond to the Tribunal's invitation to comment on this information. Consequently, the Tribunal was satisfied that the applicant was not in Australia and therefore did not meet the essential criterion under section 36(2). As this criterion was not satisfied, the Tribunal found it unnecessary to consider the applicant's substantive claims for protection.

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