2103414 (Refugee)

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

The primary legal issue before the Tribunal was whether the applicant satisfied the criterion for a protection visa that they must be a non-citizen in Australia.

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 December 2023. The Tribunal notified the applicant of this information 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 essential criterion for the grant of a protection visa. As this threshold requirement was not met, the Tribunal found it 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.