2100999 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant from 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. The Tribunal also needed to determine the consequences of the applicant's departure from Australia on their visa application.

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 October 2021. The Tribunal notified the applicant of this information and invited them to comment, setting a deadline of 28 July 2022. As no response was received by the Tribunal, it was satisfied that the applicant was no longer in Australia. Consequently, the applicant failed to satisfy the criterion under section 36(2) and was therefore ineligible for a protection visa. The Tribunal concluded that it was unnecessary to consider the substantive grounds of the applicant's protection claim.

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