2006098 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa by a citizen of China who was not in Australia. The applicant sought review of a decision not to grant her a protection visa.

The primary legal issue before the Tribunal was whether the applicant met the criterion for a protection visa that she must be a non-citizen in Australia. The Tribunal also considered whether it was necessary to assess the applicant's substantive claims for protection given her location.

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 December 2021. The Tribunal notified the applicant of this information and invited comment, but no response was received. Consequently, the Tribunal was satisfied the applicant was not in Australia and therefore did not meet the criterion under section 36(2). As this criterion was not met, the Tribunal concluded it was unnecessary to consider the applicant's substantive claims for protection.

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