2117204 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a Vietnamese national. The applicant had returned to Vietnam for family reasons, and the Tribunal's records indicated that the applicant was no longer in Australia. The dispute centred on whether the applicant met the criteria for a protection visa, specifically the requirement of being in Australia.

The primary legal issue before the Tribunal was whether the applicant satisfied the criterion under section 36(2) of the *Migration Act 1958* (Cth) that a protection visa applicant must be a non-citizen in Australia. The Tribunal also had to determine if it was necessary to consider the applicant's substantive claims for protection, given the apparent absence from Australia.

The Tribunal reasoned that a protection visa can only be granted if the applicant is in Australia, as stipulated by section 36(2) of the Act. Movement records showed the applicant had left Australia in March 2023. The Tribunal notified the applicant of this information and invited comment, to which the applicant's representative responded that the applicant had returned to Vietnam for family reasons. Despite scheduling a hearing, the applicant did not appear. The Tribunal concluded that, based on the evidence and the applicant's representative's response, the applicant was not in Australia. Consequently, the applicant failed to satisfy the criterion under section 36(2), rendering it unnecessary to assess the substantive grounds for the protection visa application. The Tribunal affirmed the decision not to grant the protection visa.