2015593 (Refugee)

This matter concerned an application for a protection visa by a citizen of China. The applicant had departed Australia, and the Tribunal had invited comment on information indicating their absence from the country. The applicant failed to respond to this invitation.

The central 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. The Tribunal was also required to consider the applicant's substantive claims for protection, should they satisfy the threshold criteria.

The Tribunal reasoned that under section 36(2) of the *Migration Act 1958* (Cth), a protection visa can only be granted if the applicant is in Australia. Movement records indicated the applicant had left Australia in September 2021. Despite being notified of this information and invited to comment, the applicant did not respond. Consequently, the Tribunal was satisfied that the applicant was not in Australia and therefore did not meet the criterion under section 36(2). As this threshold criterion was not met, the Tribunal concluded it was unnecessary to consider the applicant's substantive claims for protection.

The Tribunal affirmed the decision not to grant the applicant a protection visa.