2102750 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant from China. The applicant had previously left Australia, and the Tribunal was reviewing a decision not to grant the visa.

The primary legal issue before the Tribunal was whether the applicant satisfied the criterion for a protection visa that they must be a non-citizen *in* Australia. This criterion is stipulated by section 36(2) of the relevant Act, which mandates that a visa may only be granted if the prescribed criteria are met, including the applicant's presence in Australia.

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 July 2022. The Tribunal notified the applicant of this information and invited a response, but no submission 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 a result, it was unnecessary for the Tribunal to consider the substantive grounds of the applicant's protection claim.

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