1728839 (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, which raised questions about their eligibility for the visa.

The primary legal issue before the Tribunal was whether the applicant satisfied 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 considered whether it was necessary to assess the applicant's substantive claims for protection given their departure from Australia.

The Tribunal reasoned that section 36(2) of the *Migration Act 1958* (Cth) mandates that an applicant for a protection visa must be in Australia. Movement records indicated the applicant had left Australia in September 2021. 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 criterion under section 36(2). As this threshold criterion was not met, the Tribunal concluded it was unnecessary to consider the applicant's substantive claims for protection.

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