1800193 (Refugee)

This matter concerned an application for a protection visa by a citizen of China. The applicant had departed Australia in December 2019. The Administrative Appeals Tribunal, constituted by Member Melissa McAdam, was required to determine whether the applicant met the criteria 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 mandates that a protection visa can only be granted if the applicant is physically present within Australia.

The Tribunal reasoned that movement records indicated the applicant had left Australia in December 2019. 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 was not in Australia. As this fundamental criterion was not met, 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.