1808653 (Refugee)

The Administrative Appeals Tribunal, with Member Christine Cody presiding, considered an application for a protection visa by an applicant from China. The dispute centred on whether the applicant met the threshold criteria for the grant of a protection visa, specifically the requirement of being physically present in Australia.

The primary legal issue before the Tribunal was whether the applicant satisfied the criterion stipulated in section 36(2) of the *Migration Act 1958* (Cth), which mandates that an applicant for a protection visa must be a non-citizen present in Australia. This criterion is a prerequisite for the Tribunal to consider the substantive grounds of the protection claim.

The Tribunal reasoned that a protection visa can only be granted if the applicant is in Australia, as per section 36(2) of the Act. Movement records indicated that the applicant had departed Australia. In accordance with section 424A of the Act, the Tribunal 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, and therefore did not meet the essential criterion for a protection visa. As a result, the Tribunal found it unnecessary to assess the applicant's underlying claims for protection. The Tribunal affirmed the decision not to grant the applicant a protection visa.