1800994 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an individual from China. The applicant had previously left Australia, and the Tribunal sought to communicate with them regarding their visa application.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa, specifically the requirement that the applicant must be a non-citizen present in Australia. The Tribunal also had 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 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 departed Australia in May 2019. The Tribunal communicated this information to the applicant and invited comment, but received no response. Based on this evidence, the Tribunal was satisfied that the applicant was not in Australia, and therefore did not meet the criterion under section 36(2). Consequently, the Tribunal concluded it was unnecessary to assess the applicant's substantive claims for protection.

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