1808117 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa by an applicant from China. The applicant had previously left 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 under section 65(1) of the Act.

The Tribunal noted that movement records indicated the applicant had departed Australia. In accordance with section 424A of the Act, the Tribunal notified the applicant of this information and invited comment, but received no response. Based on the available evidence, the Tribunal was satisfied that the applicant was not in Australia. Consequently, the Tribunal concluded that the applicant failed to satisfy the essential criterion under section 36(2) and therefore could not be granted a protection visa. As this threshold issue was not met, the Tribunal deemed it unnecessary to consider the applicant's substantive claims for protection.

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