1728309 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa by an applicant from Vietnam. The dispute arose because the applicant had departed Australia, and the Tribunal was required to determine whether a protection visa could be granted in these circumstances.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa, specifically the requirement that the applicant must be in Australia at the time of the decision. The Tribunal also considered whether it was necessary to assess the applicant's substantive claims for protection given their absence from Australia.

The Tribunal reasoned that section 36(2) of the *Migration Act 1958* (Cth) establishes that a criterion for a protection visa is that the applicant must be a non-citizen in Australia. As movement records indicated the applicant had left Australia in May 2023, and no response was received from the applicant after being invited to comment on this information, the Tribunal was satisfied that the applicant did not meet this essential criterion. Consequently, the Tribunal concluded that it was not necessary to consider the applicant's substantive claims for protection.

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