1721474 (Refugee)

The Administrative Appeals Tribunal, constituted by Member Nicole Burns, considered an application for a protection visa by an applicant from Vietnam. The core of the dispute was whether the applicant met the eligibility criteria for the visa, specifically concerning their physical presence in Australia.

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). This section is a prerequisite for the grant of a protection visa under section 65(1) of the Act.

The Tribunal's reasoning focused on the applicant's location. Movement records indicated that the applicant had departed Australia on 11 December 2017 and was therefore not physically present in the country. The Tribunal notified the applicant of this information and invited comment, but no response was received. Consequently, the Tribunal was satisfied that the applicant did not meet the fundamental requirement of being in Australia, rendering them ineligible for a protection visa. The Tribunal concluded that 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.