1730375 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant from China. The dispute centred on whether the applicant met the eligibility criteria for the visa, specifically the requirement of being present in Australia.

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), for the grant of a protection visa. This criterion is a prerequisite for a visa grant 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. Evidence indicated that the applicant had departed Australia in October 2018 and had not returned. The Tribunal had invited the applicant to comment on this fact, but no response was received. Consequently, the Tribunal was satisfied that the applicant did not meet the criterion of being in Australia and therefore could not be granted a protection visa.

The Tribunal affirmed the decision not to grant the applicant a protection visa.