2012288 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a citizen of China. The applicant's claim for a protection visa was refused, and the Tribunal was asked to review this decision.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa, specifically the requirement that the applicant must be a non-citizen present in Australia. The Tribunal also had to determine the effect of the applicant's departure from Australia on their eligibility for the visa.

The Tribunal reasoned that under section 36(2) of the *Migration Act 1958* (Cth), a criterion for a protection visa is that the applicant must be in Australia. Movement records indicated that the applicant had departed Australia in April 2021. The Tribunal communicated this information to the applicant, inviting comment by 1 October 2021. As no response was received, the Tribunal was satisfied that the applicant was no longer in Australia. Consequently, the applicant failed to satisfy the criterion under section 36(2) and was therefore ineligible for a protection visa. The Tribunal found it 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.