1802413 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a Vietnamese national. The applicant had departed Australia, and the Tribunal was reviewing a decision not to grant the visa.

The primary legal issue before the Tribunal was whether the applicant met the criterion for a protection visa that they must be a non-citizen *in* Australia. The Tribunal also needed to determine if it was necessary to consider the applicant's substantive claims for protection, given the preliminary issue.

The Tribunal reasoned that section 36(2) of the *Migration Act 1958* (Cth) requires an applicant for a protection visa to be in Australia. Movement records indicated the applicant had left Australia in December 2021. The Tribunal notified the applicant of this information and invited comment, but no response was received. Consequently, the Tribunal was satisfied that the applicant was not in Australia and therefore did not meet the statutory criterion for the grant of a protection visa. As this threshold requirement 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.