2207009 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa by an applicant from China. The applicant had departed Australia, and the Tribunal's records indicated this fact. The core of the dispute revolved around whether the applicant met the fundamental eligibility requirements for a protection visa, specifically the criterion 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 if the applicant was indeed in Australia at the time of the decision.

The Tribunal reasoned that section 65(1) of the *Migration Act 1958* (Cth) mandates that a visa can only be granted if the prescribed criteria are met. It noted that section 36(2) is a threshold criterion for a protection visa, requiring the applicant to be physically present in Australia. The Tribunal's movement records indicated the applicant had left Australia in January 2023. Upon receiving this information, the Tribunal invited the applicant to comment, but no response was forthcoming. Consequently, the Tribunal was satisfied that the applicant was not in Australia, thereby failing to meet the essential criterion under section 36(2). As this fundamental requirement was not met, the Tribunal concluded it was 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.