1819927 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa by a Vietnamese national. The applicant had previously 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 met the criterion of being a non-citizen *in Australia* for the purposes of a protection visa, as stipulated by section 36(2) of the relevant Act.

The Tribunal reasoned that section 65(1) of the Act requires that all prescribed criteria for a visa must be satisfied for a visa to be granted. It noted that section 36(2) specifically requires an applicant for a protection visa to be in Australia. Movement records indicated the applicant had left Australia in August 2022. The Tribunal 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).

The Tribunal affirmed the decision not to grant the applicant a protection visa, as it was not necessary to consider the substantive grounds for the protection claim given the failure to meet the basic jurisdictional requirement of being in Australia.