1618324 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a citizen of China. The applicant had departed Australia, and the Department of Immigration's records indicated this departure. The Tribunal had previously communicated with the applicant's representative regarding the applicant's status in Australia.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa, specifically the requirement that the applicant be a non-citizen *in* Australia at the time of the decision. The Tribunal also needed to determine if it was necessary to consider the substantive grounds for the protection claim given the applicant's departure from Australia.

The Tribunal reasoned that under section 36(2) of the *Migration Act 1958* (Cth), a fundamental criterion for a protection visa is that the applicant must be in Australia. The Tribunal was satisfied, based on the Department's movement records and the confirmation from the applicant's representative, that the applicant had departed Australia in July 2017. Consequently, the applicant did not satisfy the criterion of being in Australia. The Tribunal concluded that it was not necessary to assess the applicant's substantive claims for protection, as the threshold jurisdictional requirement had not been met.

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