2109863 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant from China. The dispute concerned whether the applicant met the criteria for the grant of a protection visa, specifically the requirement that the applicant be physically present in Australia.

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), which is a prerequisite for the grant of a protection visa under section 65(1) of the Act. The Tribunal also had to determine if it was necessary to consider the substantive grounds of the applicant's protection claim.

The Tribunal reasoned that movement records indicated the applicant had departed Australia in February 2023. Consequently, the applicant was not in Australia, failing to meet the essential criterion under section 36(2). The Tribunal had notified the applicant of this information and invited comment, but no response was received. Given this failure to satisfy the fundamental requirement of being in Australia, the Tribunal concluded that it was unnecessary to assess the applicant's substantive case for protection. The Tribunal affirmed the decision not to grant the protection visa.