2316107 (Refugee)

This matter concerned an application for a protection visa by an applicant from China who was not in Australia at the time of the decision. The dispute before the Tribunal was whether the applicant met the criteria for the grant of a protection visa.

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

The Tribunal, constituted by Member Alicia Bills, considered movement records which indicated the applicant had departed Australia in October 2023. The Tribunal had notified the applicant of this information and invited comment, but no response was received. Based on this evidence, the Tribunal was satisfied that the applicant was not in Australia. Consequently, the Tribunal concluded that the applicant failed to satisfy the criterion under section 36(2) of the Act, rendering them ineligible for a protection visa. The Tribunal affirmed the decision not to grant the visa, and it was not necessary to consider the substantive claims for protection.