2104359 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a citizen of China. The applicant had previously left Australia, and the Department of Home Affairs' movement records indicated that the applicant was no longer in the country. The Tribunal was asked 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 is a prerequisite for the grant of a protection visa.

The Tribunal reasoned that, pursuant to section 65(1) of the *Migration Act 1958* (Cth), a visa can only be granted if the prescribed criteria are met. As section 36(2) requires the applicant to be in Australia, and the movement records indicated the applicant had departed Australia in January 2023, the applicant did not satisfy this essential criterion. The Tribunal had notified the applicant of this information and provided an opportunity to respond, but no response was received. Consequently, the Tribunal was satisfied that the applicant was not in Australia and therefore ineligible for a protection visa.

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