2207451 (Refugee)

This matter concerned an application for a protection visa by an applicant from China who was not in Australia. The Administrative Appeals Tribunal, with Member Melissa McAdam presiding, was required to determine whether the applicant met the criteria for the grant of a protection visa.

The central 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's reasoning focused on the jurisdictional requirement of the applicant's presence within Australia. Evidence from movement records indicated that the applicant had departed Australia. 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 concluded 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.