2015650 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant from China who was not in Australia. 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 within Australia.

The Tribunal found, based on movement records, that the applicant had departed Australia in July 2023 and was therefore not in Australia at the time of the decision. The Tribunal had notified the applicant of this information and invited comment, but no response was received. Consequently, the Tribunal concluded that the applicant did not satisfy the fundamental requirement of being in Australia, rendering it unnecessary to consider the substantive grounds of their protection claim. The Tribunal affirmed the decision not to grant the protection visa.