2310447 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa by an applicant from China. The applicant had departed Australia, and the Tribunal was reviewing a decision not to grant the visa.

The primary legal issue before the Tribunal was whether the applicant met the criterion of being a non-citizen in Australia, as stipulated by section 36(2) of the *Migration Act 1958* (Cth), which is a prerequisite for the grant of a protection visa.

The Tribunal reasoned that section 65(1) of the *Migration Act 1958* (Cth) requires that all prescribed criteria for a visa must be satisfied. It noted that section 36(2) specifically mandates that an applicant for a protection visa must be in Australia. Movement records indicated the applicant had departed Australia in January 2024. 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, as it was not necessary to consider the substantive grounds of the protection claim given the failure to meet the basic jurisdictional requirement of being in Australia.