1716176 (Refugee)

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

The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa. Specifically, the Tribunal had to determine if the applicant was a non-citizen in Australia, as required by section 36(2) of the *Migration Act 1958* (Cth).

The Tribunal reasoned that section 65(1) of the Act mandates that a visa can only be granted if the prescribed criteria are satisfied. As section 36(2) requires the applicant to be in Australia for a protection visa, the applicant's absence from Australia was a fatal flaw to their application. The Tribunal had notified the applicant of information suggesting they were outside Australia and invited a response, which was not received. Based on the evidence that the applicant had departed Australia in April 2020 and had not returned, the Tribunal concluded that the applicant did not satisfy the criterion of being in Australia. Consequently, 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.