2014420 (Refugee)

The Administrative Appeals Tribunal considered an application for a Protection visa made by a citizen of 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 satisfied the criterion for a Protection visa that they must be a non-citizen in Australia, as stipulated by section 36(2) of the *Migration Act 1958* (Cth).

The Tribunal reasoned that section 65(1) of the *Migration Act 1958* (Cth) requires that prescribed criteria for a visa 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 May 2021. The Tribunal communicated this information to the applicant, who, through their representative, confirmed they were unable to locate the applicant as they were outside Australia. Consequently, the Tribunal was satisfied that the applicant was not in Australia and therefore did not meet the criterion under section 36(2).

The Tribunal affirmed the decision not to grant the applicant a Protection visa, as it was not necessary to consider the substantive claims for protection given the failure to meet the basic jurisdictional requirement of being in Australia.