2302798 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a citizen of 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.

The Tribunal reasoned that section 65(1) of the Act mandates that a visa can only be granted if 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 departed Australia in May 2023. The Tribunal had notified the applicant of this information and invited comment, but no response was received. Consequently, the Tribunal was satisfied that the applicant was not in Australia, and therefore did not meet the criterion under section 36(2).

The Tribunal affirmed the decision not to grant the applicant a protection visa, as it was not necessary to consider the substantive grounds of the protection claim given the failure to meet the jurisdictional requirement of being in Australia.