2101845 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa by an applicant from China. The dispute centred on whether the applicant met the eligibility criteria for the visa, specifically the requirement of being present in Australia.

The primary legal issue before the Tribunal was whether the applicant satisfied the criterion under section 36(2) of the *Migration Act 1958* (Cth) that a protection visa applicant must be a non-citizen in Australia. This required the Tribunal to determine the applicant's physical location at the time of the decision.

The Tribunal reasoned that a protection visa can only be granted if the applicant is physically present in Australia, as stipulated by section 36(2) of the Act. Movement records indicated that the applicant had departed Australia in November 2023. The Tribunal notified the applicant of this information and invited comment, but no response was received. 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 the applicant failed to satisfy the fundamental requirement of being in Australia, the Tribunal concluded that it was unnecessary to consider the substantive grounds of the protection claim. The Tribunal affirmed the decision not to grant the applicant a protection visa.