2114003 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a Vietnamese national. The applicant had previously left Australia, and the Tribunal's records indicated this fact.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa, specifically the requirement under section 36(2) of the Migration Act 1958 (Cth) that the applicant must be a non-citizen *in* Australia.

The Tribunal reasoned that a protection visa can only be granted if the applicant is physically present in Australia. As movement records showed the applicant had departed Australia in January 2022, they did not satisfy this fundamental criterion. The Tribunal had invited the applicant to comment on this information, but no response was received. Consequently, the Tribunal was satisfied that the applicant was not in Australia and therefore could not be granted a protection visa, rendering it unnecessary to consider the substantive grounds of the protection claim.

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