2212209 (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 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's presence in Australia.

The Tribunal reasoned that section 65(1) of the *Migration Act 1958* (Cth) mandates that a visa can only be granted if the prescribed criteria are satisfied. It noted that movement records indicated the applicant had departed Australia in October 2022. The Tribunal communicated this information to the applicant, inviting comment, but received no response. Consequently, the Tribunal was satisfied that the applicant was not in Australia and therefore did not meet the criterion under section 36(2). As this essential criterion was not met, the Tribunal concluded 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.