1908089 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa by a citizen of China who was not within Australia. The applicant had previously departed Australia and was seeking a protection visa while outside the migration zone.

The primary legal issue before the Tribunal was whether the applicant met the threshold criterion for the grant of a protection visa, specifically the requirement that the applicant be a non-citizen *in* Australia.

The Tribunal's reasoning centred on section 36(2) of the *Migration Act 1958* (Cth), which stipulates that a criterion for a protection visa is that the applicant must be in Australia. Movement records indicated the applicant had departed Australia in March 2023. 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 essential criterion under section 36(2).

The Tribunal affirmed the decision not to grant the applicant a protection visa, as the applicant failed to satisfy the jurisdictional requirement of being in Australia. It was therefore unnecessary to consider the substantive claims for protection.