2112789 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a person 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 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 the applicant being physically present in Australia.

The Tribunal reasoned that movement records indicated the applicant had departed Australia. In accordance with section 424A of the *Migration Act 1958* (Cth), 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 under section 36(2) for the grant of a protection visa. As this threshold requirement was not met, the Tribunal found it unnecessary to consider the applicant's substantive claims for protection.

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