1730958 (Refugee)

This matter concerned an application for a protection visa by a citizen of China. The applicant had previously been in Australia but had departed the country. The Administrative Appeals Tribunal was required to determine whether the applicant met the criteria for the grant of a protection visa.

The primary legal issue before the Tribunal was whether the applicant satisfied the criterion that they be a non-citizen *in Australia* at the time of the decision, as stipulated by section 36(2) of the *Migration Act 1958* (Cth). This requirement is a prerequisite for the grant of a protection visa under section 65(1) of the Act.

The Tribunal considered movement records which indicated the applicant had left Australia in July 2018. The Tribunal notified the applicant of this information and invited comment, but no response was received. Based on the available evidence, the Tribunal was satisfied that the applicant was not in Australia. Consequently, the Tribunal concluded that the applicant did not meet the essential criterion of being in Australia and therefore could not be granted a protection visa. The Tribunal found it unnecessary to consider the substantive claims made by the applicant for protection.

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