1703332 (Refugee)

The applicant, a citizen of China, sought review of a decision not to grant her a protection visa. The dispute arose because the applicant had left Australia, and the Tribunal was unable to grant a protection visa to a non-citizen who was not physically present in Australia.

The primary legal issue before the Tribunal was whether the applicant satisfied the criterion for a protection visa that she must be a non-citizen in Australia, as stipulated by section 36(2) of the *Migration Act 1958* (Cth). The Tribunal also considered whether it was necessary to assess the applicant's substantive claims for protection given her absence from Australia.

The Tribunal reasoned that under section 65(1) of the *Migration Act 1958* (Cth), a visa can only be granted if the prescribed criteria are met. Section 36(2) requires an applicant for a protection visa to be in Australia. Movement records indicated the applicant had departed Australia in March 2020. The Tribunal communicated this information to the applicant, inviting 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).

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