2214928 (Refugee)

The Administrative Appeals Tribunal, with Member Nora Lamont presiding, considered an application for a protection visa by an applicant from China. The dispute arose because the applicant had left Australia, and the Tribunal was required to determine whether the applicant met the criteria for the visa.

The central legal issue before the Tribunal was whether the applicant satisfied the criterion that they be a non-citizen *in Australia* for the purposes of section 36(2) of the *Migration Act 1958* (Cth), which is a prerequisite for the grant of a protection visa.

The Tribunal reasoned that under section 65(1) of the *Migration Act 1958* (Cth), a visa can only be granted if the prescribed criteria are satisfied. It noted that section 36(2) specifically requires the applicant to be in Australia. Movement records indicated the applicant had departed Australia in November 2022. The Tribunal notified the applicant of this information and invited comment, but no response was received. Consequently, the Tribunal was satisfied that the applicant was not in Australia and therefore did not meet the criterion under section 36(2).

The Tribunal affirmed the decision not to grant the applicant a protection visa, finding it unnecessary to consider the substantive claims for protection given the applicant's absence from Australia.