1719382 (Refugee)

The applicant, a citizen of China, sought review of a decision not to grant a protection visa. The decision-maker, Christine Cody, a Member of the Tribunal, was required to determine whether the applicant met the criteria for 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 mandates that a protection visa can only be granted if the applicant is physically present within Australia.

The Tribunal considered movement records which indicated the applicant had departed Australia in January 2019. The Tribunal notified the applicant of this information and invited comment, but received no response. Based on the available evidence, the Tribunal was satisfied that the applicant was no longer in Australia. Consequently, the Tribunal concluded that the applicant did not meet the essential criterion of being in Australia for the grant of a protection visa, rendering it unnecessary to consider the substantive grounds of the protection claim. The Tribunal affirmed the decision not to grant the protection visa.