2309157 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa by an applicant from China. The applicant had departed Australia after lodging their application.

The primary legal issue before the Tribunal was whether the applicant met the criterion for a protection visa that they must be a non-citizen in Australia at the time of the decision.

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 departed Australia in October 2023. The Tribunal notified the applicant of this information and invited comment, but no response was received by the date of the decision. Consequently, the Tribunal was satisfied that the applicant was not in Australia and therefore did not meet the statutory criterion for the grant of a protection visa. The Tribunal found it 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.