1808193 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa by a citizen of China. The applicant had left Australia, and the Tribunal's records indicated this fact. The dispute centred on whether the applicant remained eligible for a protection visa despite no longer being physically present in Australia.

The primary legal issue before the Tribunal was whether the applicant satisfied the criterion for a protection visa that they must be a non-citizen in Australia. This criterion is stipulated by section 36(2) of the *Migration Act 1958* (Cth), which requires the decision-maker to be satisfied that the prescribed criteria for the visa have been met 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. As movement records indicated the applicant had departed Australia in March 2020, and the applicant failed to respond to the Tribunal's invitation to comment on this information, the Tribunal was satisfied that the applicant did not meet the criterion of being in Australia. Consequently, 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 protection visa.