1806492 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa by an applicant from 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 of being a non-citizen in Australia, as stipulated by section 36(2) of the *Migration Act 1958* (Cth), which is a prerequisite for the grant of a protection visa.

The Tribunal reasoned that section 65(1) of the *Migration Act 1958* (Cth) requires a decision-maker to be satisfied that all prescribed criteria for a visa have been met. It noted that section 36(2) specifically requires an applicant for a protection visa to be in Australia. Movement records indicated that the applicant had left Australia in February 2021. The Tribunal communicated this information to the applicant, inviting comment, but received no response. Consequently, the Tribunal was satisfied that the applicant was not in Australia and therefore did not satisfy the criterion under section 36(2). As this criterion was not met, the Tribunal concluded 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.