1732597 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a citizen of China. The applicant was not physically present in Australia at the time of the decision. The dispute centred on whether the applicant met the threshold requirements for the grant of 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 in Australia. Evidence from movement records indicated that the applicant had departed Australia in January 2019 and was not present at the time of the decision. The Tribunal had 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 criterion of being in Australia, and therefore did not satisfy the requirements for a protection visa. The Tribunal concluded that it was unnecessary to consider the substantive claims for protection.

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