2204422 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa by an applicant from China. The dispute arose because the applicant had apparently left Australia, which raised a question about their eligibility for the visa.

The primary legal issue before the Tribunal was whether the applicant met the criterion of being a non-citizen *in* Australia, as required by section 36(2) of the relevant Act for the grant of a protection visa. The Tribunal also had to determine if it was necessary to consider the substantive grounds of the applicant's protection claim.

The Tribunal reasoned that section 65(1) of the Act mandates that a visa can only be granted if prescribed criteria are satisfied, and section 36(2) specifically requires the applicant to be in Australia. Movement records indicated the applicant had left Australia in November 2023. The Tribunal notified the applicant of this information and invited comment, but received no response. Consequently, the Tribunal was satisfied that the applicant was not in Australia, thus failing to meet a fundamental criterion for the protection visa.

As the applicant did not satisfy the requirement of being in Australia, the Tribunal concluded that it was unnecessary to assess the merits of their substantive protection claim. The Tribunal affirmed the decision not to grant the applicant a protection visa.