1721548 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa by an applicant from China. The dispute arose because the applicant had departed Australia, and the Tribunal was required to determine whether the applicant met the criteria for the visa.

The central legal issue before the Tribunal was whether the applicant satisfied the requirement of being a non-citizen *in Australia* for the purposes of section 36(2) of the *Migration Act 1958* (Cth), which is a prescribed criterion for the grant of a protection visa.

The Tribunal reasoned that under section 65(1) of the *Migration Act 1958* (Cth), a visa can only be granted if the prescribed criteria are satisfied. It noted that movement records indicated the applicant had left Australia in December 2019. The Tribunal communicated this information to the applicant, inviting comment, but received no response. Based on the evidence of the applicant's departure, the Tribunal was satisfied that the applicant was not in Australia and therefore did not meet the criterion under section 36(2). Consequently, 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.