1800900 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant from Vietnam. The dispute centred on whether the applicant met the eligibility criteria for the visa, specifically concerning their 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), which is a prerequisite for the grant of a protection visa under section 65(1) of the Act.

The Tribunal reasoned that a protection visa can only be granted if the applicant is physically present in Australia. Evidence from the Department of Immigration indicated that the applicant had departed Australia in July 2018. The Tribunal had 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 criterion under section 36(2) of the Act. As this criterion was not met, the Tribunal concluded 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.