2308287 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa by an applicant from China. The dispute centred on whether the applicant met the eligibility criteria for the visa, specifically the requirement of being present in Australia.

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

The Tribunal reasoned that a protection visa can only be granted if the applicant is physically present in Australia. Movement records indicated that the applicant had departed Australia in October 2023. The Tribunal notified the applicant of this information and invited them to provide comment, but received no response. Consequently, the Tribunal was satisfied that the applicant was not in Australia and therefore did not meet the essential criterion under section 36(2). 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 protection visa.