2018192 (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 central 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. This criterion is stipulated by section 36(2) of the *Migration Act 1958* (Cth), which requires the decision maker to be satisfied that the prescribed criteria for the visa have been met, including that the applicant is physically present in Australia.

The Tribunal reasoned that movement records indicated the applicant had departed Australia in November 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 satisfy the fundamental criterion under section 36(2) of the Act. As this criterion was not met, the Tribunal concluded it was unnecessary to consider the applicant's substantive claims for protection.

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