1811474 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa by an applicant from Vietnam. The applicant had left Australia, and the Tribunal was reviewing a decision not to grant the visa.

The primary legal issue before the Tribunal was whether the applicant satisfied the criterion for a protection visa that they must be a non-citizen in Australia, as stipulated by section 36(2) of the *Migration Act 1958* (Cth).

The Tribunal reasoned that section 65(1) of the *Migration Act 1958* (Cth) requires the decision-maker to be satisfied that all prescribed criteria for a visa have been met. It noted that section 36(2) specifically requires an applicant for a protection visa to be in Australia. Movement records indicated the applicant had departed Australia in May 2021. The Tribunal provided the applicant with an opportunity to comment on this information, but no response was received. Consequently, the Tribunal was satisfied that the applicant was not in Australia and therefore did not meet the criterion under section 36(2).

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