2013731 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa by an applicant from China. The applicant was not in Australia at the time of the decision, having departed the country in May 2024. The Tribunal had previously corresponded with the applicant, informing them that their records indicated they were outside of Australia and therefore ineligible for a protection visa, and invited comment.

The primary legal issue before the Tribunal was whether the applicant satisfied the criteria for a protection visa. Specifically, the Tribunal had to determine if the applicant met the requirement stipulated in section 36(2) of the *Migration Act 1958* (Cth), which mandates that an applicant for a protection visa must be a non-citizen *in Australia*.

The Tribunal reasoned that under section 65(1) of the *Migration Act 1958* (Cth), a visa can only be granted if the prescribed criteria are satisfied. The Tribunal was satisfied, based on movement records and the applicant's failure to respond to correspondence, that the applicant was not in Australia. Consequently, the applicant failed to meet the criterion in section 36(2) of the Act. As this threshold requirement was not met, the Tribunal found it 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.