2113563 (Refugee)

The applicant, a citizen of China, sought a protection visa. The dispute arose when the Tribunal, reviewing the decision not to grant the visa, found that the applicant had departed Australia. The decision under review was affirmed by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa, specifically the requirement that the applicant be a non-citizen present in Australia. The Tribunal also considered whether it was necessary to assess the applicant's substantive claims for protection given the applicant's absence from Australia.

The Tribunal reasoned that under section 36(2) of the *Migration Act 1958* (Cth), a criterion for a protection visa is that the applicant must be 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 satisfy the criterion under section 36(2).

As the applicant did not meet this fundamental requirement, the Tribunal concluded it was unnecessary to consider the applicant's substantive case for the grant of the protection visa. The Tribunal affirmed the decision not to grant the applicant a protection visa.