2100377 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant from China. The dispute arose because the applicant had apparently departed Australia, which raised a question about their eligibility for the visa.

The primary legal issue before the Tribunal was whether the applicant met the criterion of being a non-citizen *in* Australia, as required by section 36(2) of the *Migration Act 1958* (Cth) for the grant of a protection visa. The Tribunal also had to determine if it was necessary to consider the applicant's substantive claims for protection given their apparent absence from Australia.

The Tribunal reasoned that section 65(1) of the *Migration Act 1958* (Cth) mandates that a visa can only be granted if the prescribed criteria are satisfied. It noted that section 36(2) specifically requires an applicant for a protection visa to be a non-citizen in Australia. Movement records indicated the applicant had left Australia in June 2023. The Tribunal communicated this information to the applicant and invited comment, but received no response. Consequently, the Tribunal was satisfied that the applicant was not in Australia and therefore did not meet the criterion under section 36(2).

As the applicant failed to satisfy the fundamental requirement of being in Australia, the Tribunal concluded that it was unnecessary to consider the substantive grounds of their protection claim. The Tribunal affirmed the decision not to grant the applicant a protection visa.