2015519 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa by an applicant from China. The applicant had previously left Australia, and the Tribunal was reviewing a decision not to grant the visa.

The primary legal issue before the Tribunal was whether the applicant met the criterion of being a non-citizen *in Australia* for the purposes of a protection visa, 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 a decision maker to be satisfied that prescribed criteria for a visa have been met. It noted that section 36(2) specifically requires an applicant for a protection visa to be in Australia. Movement records indicated the applicant had departed Australia in December 2023. The Tribunal had invited the applicant to comment on this information, 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 a protection visa.

The Tribunal affirmed the decision not to grant the applicant a protection visa, finding it unnecessary to consider the substantive grounds of the protection claim given the applicant's absence from Australia.