1811819 (Refugee)

This matter concerned an application for a protection visa by a citizen of China who was not in Australia. The Administrative Appeals Tribunal (AAT) 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 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 physically present in Australia. Evidence indicated that the applicant had departed Australia in December 2018. The Tribunal had contacted the applicant, advising that its records showed they were not in Australia and therefore ineligible for a protection visa, and invited comment. As no response was received, the Tribunal was satisfied that the applicant was not in Australia and thus failed to meet the essential criterion under section 36(2) of the Act. Consequently, the Tribunal found it unnecessary to consider the substantive grounds of the protection claim.

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