1809826 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant from China. The applicant was not in Australia at the time of the decision.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa, specifically the requirement that the applicant be a non-citizen *in 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 the applicant had departed Australia in January 2020. The Tribunal notified the applicant of this information and invited a response, but no response was received by the date of the decision. Consequently, the Tribunal was satisfied that the applicant was not in Australia and therefore did not meet the criterion under section 36(2). As this threshold criterion was not met, the Tribunal found it unnecessary to consider the substantive claims for protection.

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