2116158 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa by a citizen of Vietnam. The applicant had departed Australia, and the Tribunal sought to ascertain his location and eligibility for the visa.

The primary legal issue before the Tribunal was whether the applicant satisfied the criterion that he be a non-citizen in Australia, as stipulated by section 36(2) of the *Migration Act 1958* (Cth), which is a prerequisite for the grant of a protection visa under section 65(1) of the Act.

The Tribunal reasoned that movement records indicated the applicant had left Australia in February 2022. Consequently, the Tribunal notified the applicant of this information and invited him to provide comment, but received no response. Based on the evidence of the applicant's departure and the lack of any response, the Tribunal was satisfied that the applicant was not in Australia. As this fundamental criterion was not met, the Tribunal concluded that a protection visa could not be granted, and it was 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.