2106365 (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 satisfied 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 under section 65(1) of the Act.

The Tribunal reasoned that movement records indicated the applicant had departed Australia in January 2022. The Tribunal notified the applicant of this information and invited comment, but received no response. Based on the available evidence, the Tribunal was satisfied that the applicant was not in Australia. Consequently, the applicant failed to meet the fundamental requirement of section 36(2) and was therefore ineligible for a protection visa. The Tribunal concluded that it was 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.