1716578 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a person from China. The applicant was not present in Australia, and the Tribunal had received no response from the applicant to its inquiries regarding this matter.

The primary legal issue before the Tribunal was whether the applicant met the criteria for the grant of a protection visa. Specifically, the Tribunal had to determine if the applicant satisfied the requirement under section 36(2) of the *Migration Act 1958* (Cth) that they be a non-citizen in Australia.

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, and movement records indicated the applicant had departed Australia in December 2018, the applicant did not meet this essential criterion. Despite the Tribunal notifying the applicant of this information and inviting comment, no response was received. Consequently, the Tribunal was satisfied that the applicant was not in Australia and therefore could not be granted a protection visa, rendering it unnecessary to consider the substantive grounds of the protection claim.

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