1722429 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa by an applicant from China. The dispute arose because the applicant had departed Australia, and 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 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 physically present in Australia. Movement records indicated that the applicant had left Australia in January 2019. The Tribunal notified the applicant of this information and invited comment, but no response was received. Consequently, the Tribunal was satisfied that the applicant was not in Australia and therefore did not meet the essential criterion under section 36(2). As this criterion was not met, the Tribunal concluded 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.