2015377 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a citizen of China. The applicant had previously left Australia, and the Tribunal was reviewing a decision not to grant the visa.

The primary legal issue before the Tribunal was whether the applicant met the criterion for a protection visa that they must be a non-citizen *in* Australia at the time of the decision. The Tribunal also considered whether it was necessary to assess the applicant's substantive claims for protection given their presence outside Australia.

The Tribunal reasoned that section 36(2) of the *Migration Act 1958* (Cth) requires an applicant for a protection visa to be in Australia. Movement records indicated that the applicant had departed Australia in November 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 statutory criterion for the grant of a protection visa.

The Tribunal affirmed the decision not to grant the applicant a protection visa, as it was not necessary to consider the substantive grounds for protection given the applicant's absence from Australia.