2017498 (Refugee)

The applicant, a citizen of China, sought a protection visa. The Administrative Appeals Tribunal (AAT) affirmed the decision not to grant the visa.

The primary legal issue before the Tribunal was whether the applicant satisfied the criterion of being a non-citizen in Australia, as required by section 36(2) of the *Migration Act 1958* (Cth) 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. Movement records indicated that the applicant had left Australia in September 2022. The Tribunal notified the applicant of this information and invited comment, but received no response. Consequently, the Tribunal was satisfied that the applicant was not in Australia and therefore did not meet the essential criterion for a protection visa. As this criterion was not met, the Tribunal found it unnecessary to consider the applicant's substantive claims for protection.