1813348 (Refugee)

The applicant, a citizen of Vietnam, sought review of a decision not to grant her a protection visa. The dispute arose because the applicant had departed Australia, and the Tribunal's records indicated she was no longer in the country. The decision was made by Michael Hawkins, a Member of the Tribunal.

The primary legal issue before the Tribunal was whether the applicant satisfied the criteria for a protection visa, specifically the requirement that an applicant must be a non-citizen *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 her absence from Australia.

The Tribunal reasoned that under section 65(1) of the relevant Act, a visa can only be granted if the prescribed criteria are met. Section 36(2) stipulates that a criterion for a protection visa is that the applicant is in Australia. Movement records showed the applicant had left Australia in March 2019. The Tribunal communicated this information to the applicant, inviting 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). As this fundamental 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.