2008926 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a Vietnamese national. The applicant had departed Australia and, according to movement records, had voluntarily requested removal from the country. The Tribunal sought to review the 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 *in* Australia at the time of the decision. The Tribunal also considered whether it was appropriate to make a decision without inviting the applicant to a hearing, given the circumstances.

The Tribunal reasoned that under section 36(2) of the relevant Act, a protection visa can only be granted if the applicant is in Australia. Movement records indicated the applicant had left Australia and did not hold a visa allowing re-entry. The Tribunal notified the applicant of this information and invited comment, but no response was received. Consequently, the Tribunal was satisfied that the applicant was not in Australia and therefore did not meet the prescribed criteria for the visa. The Tribunal concluded that it was not necessary to consider the substantive grounds for the protection claim.

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