1729505 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a citizen of China. The applicant was not in Australia at the time of the Tribunal's decision. The dispute centred on whether the applicant met the threshold requirement for the grant of a protection visa, specifically the criterion that the applicant must be in Australia.

The primary legal issue before the Tribunal was whether the applicant satisfied the criterion stipulated in section 36(2) of the *Migration Act 1958* (Cth), which requires an applicant for a protection visa to be a non-citizen in Australia. The Tribunal also had to determine if it was necessary to consider the substantive claims for protection given the applicant's location.

The Tribunal reasoned that under section 65(1) of the *Migration Act 1958* (Cth), a visa can only be granted if the prescribed criteria are satisfied. As section 36(2) mandates that an applicant must be in Australia to be eligible for a protection visa, and movement records indicated the applicant had departed Australia in December 2018, the applicant did not meet this fundamental requirement. The Tribunal had contacted the applicant to provide an opportunity to comment on this information, but no response was received. Consequently, the Tribunal was satisfied that the applicant was not in Australia and therefore did not satisfy the criterion under section 36(2).

The Tribunal affirmed the decision not to grant the applicant a protection visa, finding it unnecessary to consider the applicant's substantive claims for protection due to the failure to meet the jurisdictional requirement of being in Australia.