1619823 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant from China. The dispute centred on whether the applicant met the eligibility criteria for the visa, specifically the requirement to be physically present in Australia.

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

The Tribunal reasoned that a protection visa can only be granted if the applicant is in Australia. Evidence from movement records indicated that the applicant had departed Australia on 31 October 2017 and was therefore not in the country. The Tribunal notified the applicant of this information and invited comment, but received no reply. Consequently, the Tribunal was satisfied that the applicant did not meet the s.36(2) criterion and affirmed the decision not to grant the protection visa, without needing to consider the substantive grounds of the protection claim.