1704370 (Refugee)

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

The primary legal issue before the Tribunal was whether the applicant satisfied the criteria for 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. The Tribunal had information indicating the applicant was not in Australia, having departed in March 2020 and not returned. The applicant was given an opportunity to respond to this information but did not do so. Consequently, the Tribunal was satisfied that the applicant did not meet the criterion of being in Australia and therefore could not be granted a protection visa. The Tribunal concluded it was unnecessary to consider the substantive grounds of the protection claim.

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