1706904 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a Vietnamese national. The applicant was not in Australia, and the Tribunal sought to contact the applicant to discuss this issue. The applicant did not respond to the Tribunal's communication.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa, specifically the requirement that the applicant be a non-citizen in Australia. The Tribunal also considered whether it was necessary to assess the applicant's substantive claims for protection given the preliminary issue.

The Tribunal reasoned that under section 36(2) of the relevant Act, a protection visa can only be granted if the applicant is in Australia. Movement records indicated the applicant had left Australia in June 2018. The Tribunal had written to the applicant to advise that its records showed they were not in Australia and invited comment, but received no response. Consequently, the Tribunal was satisfied the applicant was not in Australia and therefore did not meet the criterion under section 36(2). As this criterion was not met, the Tribunal concluded it was unnecessary to consider the applicant's substantive claims for protection.

The Tribunal affirmed the decision not to grant the applicant a protection visa.