1606343 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a person from China. The applicant was not physically present in Australia at the time of the decision.

The primary legal issue before the Tribunal was whether the applicant satisfied the prescribed criteria for the grant of a protection visa, specifically the requirement that the applicant be a non-citizen in Australia.

The Tribunal reasoned that under section 36(2) of the *Migration Act 1958* (Cth), a protection visa can only be granted if the applicant is in Australia. Movement records indicated the applicant had departed Australia in December 2018. 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 and therefore did not meet the criterion under section 36(2). As this criterion was not met, it was unnecessary for the Tribunal to consider the substantive claims for protection.

The Tribunal affirmed the decision not to grant the applicant a protection visa.