2016973 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a citizen of China. The applicant had previously been in Australia but had since departed. The core dispute concerned whether the applicant met the eligibility criteria for a protection visa, specifically the requirement of being physically present in Australia at the time of the decision.

The Tribunal was required to determine 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), which is a prerequisite for the grant of a protection visa under section 65(1) of the Act. This determination hinged on the applicant's physical location at the time the Tribunal made its decision.

The Tribunal's reasoning was based on movement records indicating the applicant was no longer in Australia. After notifying the applicant of this information and inviting comment, the Tribunal received no response. Consequently, the Tribunal was satisfied that the applicant was not in Australia, and therefore did not meet the essential criterion under section 36(2). As this criterion was not met, the Tribunal concluded it was unnecessary to consider the substantive grounds of the applicant's protection claim. The Tribunal affirmed the decision not to grant the protection visa.