1708776 (Refugee)

The Administrative Appeals Tribunal (AAT) considered an application for a protection visa by an applicant from China. The dispute centred on whether the applicant met the eligibility criteria for the visa, specifically concerning their physical location.

The primary legal issue before the Tribunal was whether the applicant satisfied the criterion that they be a non-citizen *in Australia* for the purposes of section 36(2) of the *Migration Act 1958* (Cth). This criterion is a prerequisite for the grant of a protection visa under section 65(1) of the Act.

The Tribunal reasoned that a protection visa can only be granted if the applicant is physically present in Australia. Movement records indicated that the applicant had departed Australia in April 2019 and was therefore not in the migration zone. 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 essential criterion of being in Australia.

The Tribunal affirmed the decision not to grant the applicant a protection visa, as the applicant failed to satisfy the jurisdictional requirement of being in Australia. It was therefore unnecessary to consider the substantive grounds of the protection claim.