2016465 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a citizen of 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 for a protection visa that they must be a non-citizen *in* Australia. The Tribunal also needed to determine if it was necessary to consider the applicant's substantive claims for protection, given the preliminary issue.

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. Movement records indicated the applicant had departed Australia in October 2022. The Tribunal notified the applicant of this information and invited comment, 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 the visa.

As the applicant failed to satisfy the requirement of being in Australia, the Tribunal concluded that it was unnecessary to consider the applicant's substantive claims for protection. The Tribunal affirmed the decision not to grant the protection visa.