1800497 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa by an applicant from China who was not in Australia. The Tribunal was required to determine whether the applicant met the prescribed criteria for the grant of a protection visa.

The central legal issue 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 noted that movement records indicated the applicant had departed Australia on 5 February 2018 and was therefore not physically present in the country.

The Tribunal applied section 65(1) of the *Migration Act 1958* (Cth), which mandates that a visa may only be granted if the prescribed criteria are satisfied. As the applicant was not in Australia, she failed to meet the criterion under section 36(2). The Tribunal had notified the applicant of this issue and invited comment, but received no response. Consequently, the Tribunal concluded that it was 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.