1723315 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a person from China. The applicant had departed Australia, and the Tribunal was reviewing 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.

The Tribunal reasoned that under section 36(2) of the *Migration Act 1958* (Cth), a protection visa can only be granted if the applicant is in Australia. Movement records indicated that the applicant had left Australia in August 2019. The Tribunal notified the applicant of this information and invited comment, but no response was received. Consequently, the Tribunal was satisfied that the applicant was not in Australia and therefore did not meet the requirements of section 36(2). As this criterion was not met, the Tribunal concluded it was unnecessary to consider the substantive claims for the grant of the visa.

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