2103662 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa by an applicant from China. The applicant had departed Australia, and the decision under review was an affirmation of the refusal 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 considered whether it was necessary to assess the applicant's substantive claims for protection, given the preliminary issue.

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 March 2022. 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 criterion under section 36(2). As this threshold requirement 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.