2108920 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa 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 met 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.

The Tribunal reasoned that section 65(1) of the Act requires a decision-maker to be satisfied that prescribed criteria for a visa have been met before granting it. As section 36(2) mandates that an applicant for a protection visa must be in Australia, and movement records indicated the applicant had departed Australia in July 2023, the applicant did not satisfy this fundamental requirement. The Tribunal had notified the applicant of this information and invited comment, but no response was received. Consequently, the Tribunal was satisfied the applicant was not in Australia and therefore ineligible for the visa.

The Tribunal affirmed the decision not to grant the applicant a protection visa, finding it unnecessary to consider the substantive claims for protection given the applicant's absence from Australia.