1712804 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa by a citizen of China who was not in Australia. The applicant had previously been in Australia but had departed in October 2019. The Tribunal sought to advise the applicant that, based on movement records, he was not in Australia and therefore ineligible for a protection visa, inviting him to comment.

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 was also required to determine if the applicant had provided any response or explanation regarding his location outside of Australia.

The Tribunal reasoned that under section 36(2) of the *Migration Act 1958* (Cth), a criterion for a protection visa is that the applicant must be in Australia. Movement records indicated the applicant had left Australia in October 2019. Despite being notified of this information and invited to comment, the applicant failed to respond by the due date or seek an extension. Consequently, the Tribunal was satisfied that the applicant was not in Australia and therefore did not meet the essential criterion for a protection visa.

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