1802640 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa by a citizen of 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 met the criterion for a protection visa that they must be a non-citizen *in* Australia. This criterion is stipulated by section 36(2) of the *Migration Act 1958* (Cth), which requires the decision-maker to be satisfied that the prescribed criteria for the visa have been met, as per section 65(1) of the Act.

The Tribunal reasoned that movement records indicated the applicant had left Australia in September 2019. Consequently, the applicant was not physically present in Australia, failing to satisfy the fundamental requirement of section 36(2). The Tribunal had notified the applicant of this information and invited comment, but no response was received. Based on the evidence of the applicant's departure and the lack of response, the Tribunal concluded that the applicant did not meet the criterion of being in Australia.

The Tribunal affirmed the decision not to grant the applicant a protection visa, as it was not necessary to consider the substantive grounds of the protection claim given the failure to meet the threshold requirement of being in Australia.