2212819 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa by an applicant from China. The core dispute revolved around the applicant's physical presence in Australia, which is a prerequisite for the grant of such a visa.

The Tribunal was required to determine whether the applicant met the criterion stipulated in section 36(2) of the *Migration Act 1958* (Cth), which mandates that an applicant for a protection visa must be a non-citizen in Australia. This determination was central to whether the applicant could be granted the visa.

The Tribunal's reasoning was based on movement records indicating the applicant had departed Australia in October 2022. The Tribunal notified the applicant of this information and invited comment, but received no response. 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.