2303838 (Refugee)

The Administrative Appeals Tribunal, with Member Rupert Timms presiding, considered an application for a protection visa by an applicant from China who was not in Australia. The dispute centred on whether the applicant met the eligibility criteria for the visa, specifically the requirement of being within Australia.

The primary legal issue before the Tribunal was to determine whether the applicant satisfied the criterion for a protection visa that the applicant must be a non-citizen in Australia, as stipulated by section 36(2) of the Migration Act 1958 (Cth). This required the Tribunal to ascertain the applicant's physical location at the time of the decision.

The Tribunal reasoned that section 65(1) of the Act mandates that a visa may only be granted if prescribed criteria are satisfied, and section 36(2) clearly states that a protection visa criterion is that the applicant is in Australia. Evidence from the Department's Movement Records indicated the applicant had departed Australia and remained outside the migration zone. Despite being notified and invited to comment on this information, the applicant did not respond. Consequently, the Tribunal was satisfied that the applicant was not in Australia, and therefore did not meet the essential criterion under section 36(2).

The Tribunal affirmed the decision not to grant the applicant a protection visa, as the applicant failed to satisfy the fundamental requirement of being physically present in Australia. It was therefore unnecessary to consider the substantive grounds of the applicant's protection claim.