2102774 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a citizen of China. The applicant had departed Australia, and the Tribunal was required to determine whether the applicant met the criteria for the grant of a protection visa.

The primary legal issue before the Tribunal was whether the applicant satisfied the criterion that they be a non-citizen in Australia, as stipulated by section 36(2) of the *Migration Act 1958* (Cth). This section mandates that a protection visa can only be granted if the applicant is physically present within Australia.

The Tribunal reviewed movement records which indicated that the applicant had left Australia in September 2021. The Tribunal notified the applicant of this information and invited them to provide comments, setting a deadline for response. As no response was received by the deadline, the Tribunal was satisfied that the applicant was no longer in Australia. Consequently, the Tribunal concluded that the applicant did not meet the essential criterion of being in Australia, rendering it unnecessary to consider the substantive grounds of the protection claim.

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