2113436 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa by a Vietnamese national. The applicant had 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 *Migration Act 1958* (Cth), which requires the decision maker to be satisfied that the prescribed criteria for the visa have been met under section 65(1) of the 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 October 2023. 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 essential criterion under section 36(2) of the Act. As this threshold requirement was not met, the Tribunal found it unnecessary to consider the substantive grounds of the applicant's protection claim.

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