1725980 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa by a citizen of China. The core dispute revolved around the applicant's physical presence in Australia, which is a prerequisite for the grant of such a visa.

The Tribunal was required to determine 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 within Australia.

The Tribunal's reasoning was based on movement records indicating the applicant had departed Australia on 13 December 2017. The Tribunal notified the applicant of this information and invited comment, but received no response. 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 threshold requirement was not met, the Tribunal found it 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.