2012101 (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's decision under review was to affirm the refusal of the visa.

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 at the time of the decision.

The Tribunal reasoned that section 36(2) of the *Migration Act 1958* (Cth) mandates that an applicant for a protection visa must be in Australia. Evidence from movement records indicated that the applicant had left Australia in May 2021. The Tribunal notified the applicant of this information and invited comments by a specified date, 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 under section 36(2) for the grant of a protection visa. As this criterion was not met, the Tribunal found it unnecessary to consider the substantive grounds of the applicant's claim for protection.

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