2102208 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa by an applicant from China. The core dispute concerned the applicant's eligibility for the visa, given her departure from Australia without a return visa.

The Tribunal was required to determine whether the applicant met the criteria for a protection visa, specifically the requirement under section 36(2) of the Act that the applicant must be a non-citizen *in* Australia. The Tribunal also had to consider the implications of the applicant's absence from Australia and her failure to respond to the Tribunal's invitation to comment on this information.

The Tribunal's reasoning focused on the jurisdictional requirement that an applicant must be physically present in Australia to be granted a protection visa. Movement records indicated the applicant had departed Australia and did not possess a visa to re-enter. The Tribunal had invited the applicant to provide comments on this information, but she failed to respond. Consequently, the Tribunal was satisfied, based on the available evidence, that the applicant was not in Australia and therefore did not meet the essential criterion under section 36(2). As this fundamental requirement was not met, the Tribunal concluded it was unnecessary to consider the substantive grounds of her protection claim.

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