2213406 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a citizen of China. The applicant had previously left Australia and did not hold a visa that permitted re-entry. The Tribunal sought to ascertain the applicant's presence in Australia to determine eligibility for the visa.

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 reviewed movement records which indicated the applicant had departed Australia in January 2024. The Tribunal notified the applicant of this information and invited comment, but received no response. Based on the available evidence, the Tribunal was satisfied that the applicant was not in Australia. Consequently, the Tribunal concluded that the applicant did not meet the fundamental criterion of being present in Australia and therefore could not be granted a protection visa. The Tribunal affirmed the decision not to grant the visa, finding it unnecessary to consider the substantive claims for protection.