2012525 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a citizen of China. The applicant had departed Australia after lodging their application. The Tribunal was required to determine whether the applicant met the criteria for the grant of a protection visa.

The central legal issue before the Tribunal was whether the applicant satisfied the criterion that they be a non-citizen in Australia, as stipulated by section 36(2) of the *Migration Act 1958* (Cth). This section mandates that a protection visa can only be granted if the applicant is physically present in Australia.

The Tribunal reasoned that the applicant's departure from Australia in October 2023 meant they no longer met the fundamental requirement of being in Australia to be granted a protection visa. The Tribunal had notified the applicant of this apparent departure and invited comment, providing a deadline for response. As no response was received by the specified date, the Tribunal proceeded to make a decision based on the available information. Consequently, the Tribunal concluded that the applicant did not satisfy section 36(2) of the Act, rendering it unnecessary to consider the substantive grounds of their protection claim. The Tribunal affirmed the decision not to grant the applicant a protection visa.