2013472 (Refugee)

The Administrative Appeals Tribunal considered an application for a Protection visa made by a citizen of China. The applicant was not physically present in Australia at the time of the Tribunal's decision, having departed the migration zone in December 2023. The Tribunal had previously notified the applicant that its records indicated they were outside Australia and therefore ineligible for a Protection visa, inviting comment by 14 May 2024, which was not received.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a Protection visa, specifically the requirement that the applicant be a non-citizen *in Australia* at the time of the decision. This criterion is stipulated by section 36(2) of the *Migration Act 1958* (Cth), which mandates that a visa may only be granted if the prescribed criteria are satisfied, and section 65(1) of the Act.

The Tribunal reasoned that as the applicant was not in Australia, they failed to satisfy the fundamental criterion set out in section 36(2) of the *Migration Act 1958* (Cth). The Tribunal was satisfied, based on movement records and the lack of response from the applicant to its notification, that the applicant was not in Australia. Consequently, the Tribunal concluded that it was unnecessary to consider the substantive claims for protection. The Tribunal affirmed the decision not to grant the applicant a Protection visa.