2010937 (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 for a protection visa that they must be a non-citizen *in* Australia. This criterion is stipulated by section 36(2) of the relevant Act.

The Tribunal reasoned that a protection visa can only be granted if the applicant is physically present in Australia. Movement records indicated that the applicant had departed Australia in January 2023. 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 essential criterion under section 36(2). As a result, it was unnecessary for the Tribunal to consider the applicant's substantive claims for protection. The Tribunal affirmed the decision not to grant the protection visa.