1812181 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a citizen of China. The applicant had previously been in Australia but had departed the country. The Tribunal's decision under review was the refusal to grant the protection 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 at the time of the decision. The Tribunal also needed to determine if it was necessary to consider the substantive grounds of the protection claim, given the applicant's location.

The Tribunal reasoned that section 36(2) of the *Migration Act 1958* (Cth) requires an applicant for a protection visa to be in Australia. Movement records indicated the applicant had left Australia in November 2021. The Tribunal had notified the applicant of this information and invited them to comment, but no response was received. Consequently, the Tribunal was satisfied that the applicant was not in Australia and therefore did not meet the essential criterion for the grant of a protection visa.

As the applicant failed to satisfy the fundamental requirement of being in Australia, the Tribunal concluded that it was unnecessary to consider the merits of their protection claims. The Tribunal affirmed the decision not to grant the applicant a protection visa.