2018458 (Refugee)

This matter concerned an application for a protection visa by an applicant from China who was not in Australia. The Administrative Appeals Tribunal, constituted by Member Joseph Lindsay, 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 section 65(1) of the *Migration Act 1958* (Cth) mandates that a visa may only be granted if the prescribed criteria are satisfied. Applying this to the present case, the Tribunal found that section 36(2) requires the applicant to be physically present within Australia. Evidence of the applicant's movement records indicated that they had departed Australia and were not within the migration zone. The Tribunal had notified the applicant of this information and invited comment, but remained 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, rendering it unnecessary to consider the substantive grounds of the protection claim. The Tribunal affirmed the decision not to grant the applicant a protection visa.