1800475 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a citizen of China. The applicant had left Australia, and the Tribunal sought to communicate with the applicant regarding this fact and its implications for their visa application.

The primary legal issue before the Tribunal was whether the applicant met the criterion for a protection visa that they must be a non-citizen *in* Australia. The Tribunal also needed to determine if it was necessary to consider the substantive grounds of the protection claim given the applicant's absence from Australia.

The Tribunal reasoned that section 36(2) of the *Migration Act 1958* (Cth) requires an applicant for a protection visa to be in Australia. Movement records indicated the applicant had departed Australia in November 2019. The Tribunal communicated this information to the applicant and invited comment, but received no response. Based on the evidence of the applicant's departure and the lack of any response, the Tribunal was satisfied that the applicant was not in Australia. Consequently, the applicant failed to satisfy the criterion under section 36(2) and could not be granted a protection visa. The Tribunal concluded that it was unnecessary to consider the applicant's substantive claims for protection.

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