1810167 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa by an applicant from Vietnam. The applicant was not in Australia at the time of the decision. The Tribunal had communicated with the applicant regarding information suggesting they were outside Australia, but received no response.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa. Specifically, the Tribunal had to determine if the applicant satisfied the requirement that they be a non-citizen *in Australia* at the time of the decision, as stipulated by section 36(2) of the relevant Act.

The Tribunal reasoned that under section 65(1) of the Act, a visa can only be granted if the prescribed criteria are met. The Tribunal was satisfied, based on movement records and the applicant's lack of response to its communication, that the applicant had departed Australia in March 2020 and was therefore not in Australia. As being in Australia is a mandatory criterion for a protection visa under section 36(2), the applicant could not satisfy this requirement. Consequently, the Tribunal found it 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.