1922300 (Refugee)

The applicant, a citizen of China, sought a protection visa. The dispute before the Tribunal concerned whether the applicant met the criteria for the grant of such a visa, specifically the requirement of being present in Australia.

The primary legal issue before the Tribunal was to determine whether the applicant satisfied the criterion stipulated in section 36(2) of the *Migration Act 1958* (Cth), which requires an applicant for a protection visa to be a non-citizen in Australia. This criterion is a prerequisite for the grant of a protection visa under section 65(1) of the Act.

The Tribunal reasoned that movement records indicated the applicant had departed Australia in July 2021. The Tribunal notified the applicant of this information and invited comment, but no response was received. Based on this evidence, the Tribunal was satisfied that the applicant was not in Australia. Consequently, the Tribunal concluded that the applicant failed to satisfy the criterion under section 36(2) and therefore could not be granted a protection visa. 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 applicant a protection visa.