1810364 (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 required by section 36(2) of the *Migration Act 1958* (Cth) for the grant of a protection visa.

The Tribunal reasoned that section 65(1) of the Act mandates that prescribed criteria must be satisfied for a visa to be granted. It noted that section 36(2) specifically requires an applicant for a protection visa to be in Australia. Movement records indicated the applicant had left Australia in April 2020. The Tribunal notified the applicant of this information and invited comment, but no response was received. 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 requirement 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.