1911688 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a citizen of Vietnam. The applicant had departed 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 criteria for a protection visa, specifically the requirement that the applicant be a non-citizen present in Australia at the time of the decision. The Tribunal also considered whether it had any discretion to grant a visa to an applicant who was not in Australia.

The Tribunal reasoned that section 36(2) of the relevant Act mandates that an applicant for a protection visa must be a non-citizen in Australia. Movement records indicated the applicant had left Australia in February 2020. The applicant responded to the Tribunal's notification of this fact, explaining her departure was due to a family emergency and the COVID-19 pandemic, and expressing a desire to return to Australia. However, the Tribunal found the applicant was not in Australia and that it lacked the discretion to grant a protection visa to someone outside the country. Consequently, the applicant did not satisfy the criterion under section 36(2).

The Tribunal affirmed the decision not to grant the applicant a protection visa, as the applicant did not meet the fundamental requirement of being present in Australia.