2108856 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made 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 they be a non-citizen in Australia. This criterion is a prerequisite 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 departed Australia in July 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 under section 36(2) of the Act. As this criterion was not met, the Tribunal found it unnecessary to consider the substantive grounds of the applicant's protection claim.

The Tribunal affirmed the decision not to grant the applicant a protection visa.