1722019 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant from China. The applicant had departed Australia and did not hold a current visa enabling her return. The Tribunal had communicated with the applicant regarding information suggesting she was no longer in Australia and lacked a valid visa, but received no response.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa, specifically the requirement under section 36(2) of the *Migration Act 1958* (Cth) that an applicant must be a non-citizen *in Australia* to be eligible for such a visa.

The Tribunal reasoned that, pursuant to section 65(1) of the *Migration Act 1958* (Cth), a visa can only be granted if the prescribed criteria are satisfied. As the applicant was not in Australia, having departed in June 2019 and not holding a current visa, she failed to satisfy the criterion stipulated in section 36(2). The Tribunal was satisfied of these facts based on Department of Home Affairs records and the applicant's failure to respond to the Tribunal's invitation to comment. Consequently, it was unnecessary for the Tribunal to consider the substantive grounds of the applicant's protection claim.

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