1808893 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a citizen of China. The applicant had left Australia, and the Tribunal was required to determine whether the applicant met the criteria for the grant of a protection visa.

The central 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 in Australia.

The Tribunal reasoned that movement records indicated the applicant had departed Australia in November 2019. Following this, the Tribunal notified the applicant of this information and invited comment, providing a deadline for response. As no response was received by the Tribunal, it was satisfied that the applicant was not in Australia. Consequently, the Tribunal concluded that the applicant failed to meet the essential criterion under section 36(2) of the Act and therefore could not be granted a protection visa. The Tribunal affirmed the decision not to grant the visa, finding it unnecessary to consider the substantive grounds of the protection claim.