1620938 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa by an applicant from China. The applicant was not physically present in Australia at the time of the Tribunal's decision.

The primary legal issue before the Tribunal was whether the applicant met the eligibility criteria for a protection visa, specifically the requirement that the applicant must be a non-citizen *in* Australia.

The Tribunal reasoned that under section 36(2) of the *Migration Act 1958* (Cth), a fundamental criterion for the grant of a protection visa is that the applicant must be in Australia. Movement records indicated that the applicant had departed Australia on 20 June 2018 and was not present in the country. The Tribunal notified the applicant of this information and invited comment, but no response was received. Consequently, the Tribunal was satisfied that the applicant did not meet the jurisdictional requirement of being in Australia, and therefore could not be granted a protection visa. The Tribunal concluded that it was 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.