2115740 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa by an applicant from China. The dispute arose because the applicant had departed Australia, and the Tribunal was therefore unable 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 at the time of decision. This was a threshold issue that determined whether the Tribunal could proceed to consider the substantive grounds of the protection claim.

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. 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 requirements of section 36(2). As this criterion 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.