2119840 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a person 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 satisfied the criterion for a protection visa that they must be a non-citizen in Australia. This criterion is stipulated by section 36(2) of the Migration Act 1958 (Cth).

The Tribunal reasoned that a protection visa can only be granted if the applicant is physically present in Australia. Movement records indicated that the applicant had left Australia in November 2023. The Tribunal notified the applicant of this information and invited comment, as required by section 424A of the Act. As no response was received within the prescribed period, and in accordance with sections 424C(2) and 425(2)(c) of the Act, the Tribunal proceeded to make a decision. Being satisfied that the applicant was no longer in Australia, the Tribunal concluded that the applicant did not meet the requirements of section 36(2) and therefore could not be granted a protection visa. Consequently, it was 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.