2013106 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa by an applicant from China. The applicant was not physically present in Australia, having departed the country in November 2022. The Tribunal sought to ascertain whether the applicant met the criteria for 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 is a prerequisite for the grant of a protection visa.

The Tribunal reasoned that as the applicant was not in Australia, they could not satisfy the criterion under section 36(2). Movement records confirmed the applicant's departure from Australia. The Tribunal had notified the applicant of this information and invited comment, but no response was received. Consequently, the Tribunal was satisfied that the applicant did not meet the jurisdictional requirement of being in Australia, rendering it unnecessary to consider the substantive grounds of their protection claim. The Tribunal affirmed the decision not to grant the protection visa.