1905996 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant from Vietnam. The dispute arose because Department of Home Affairs records indicated the applicant had departed Australia in November 2022, and therefore was not physically present in Australia.

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, as stipulated by section 36(2) of the relevant Act. The Tribunal also considered whether it was necessary to assess the applicant's substantive case for protection given their apparent absence from Australia.

The Tribunal reasoned that under section 65(1) of the Act, a visa can only be granted if prescribed criteria are satisfied. As section 36(2) requires the applicant to be in Australia, and movement records confirmed the applicant had left the country, this essential criterion was not met. The Tribunal had notified the applicant of this information and invited a response by 27 March 2023, but received no communication. Consequently, the Tribunal was satisfied the applicant was not in Australia and therefore ineligible for a protection visa.

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