1718606 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a citizen of China who was located outside the migration zone. The applicant sought review of a decision not to grant the visa.

The primary legal issue before the Tribunal was whether the applicant satisfied the criterion for a protection visa that they must be a non-citizen in Australia, as stipulated by section 36(2) of the *Migration Act 1958* (Cth).

The Tribunal reasoned that section 65(1) of the *Migration Act 1958* (Cth) requires a decision-maker to be satisfied that prescribed criteria for a visa have been met before granting it. It noted that Department of Immigration movement records indicated the applicant had departed Australia in September 2017. The Tribunal had notified the applicant of this information and invited 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). As this threshold requirement was not met, the Tribunal found it unnecessary to consider the substantive grounds of the applicant's protection claim.

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