2119325 (Refugee)

This matter concerned an application for a protection visa by a Vietnamese national who was not in Australia. The decision under review was affirmed by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa, specifically the requirement that the applicant be a non-citizen in Australia.

The Tribunal considered evidence of the applicant's movement records, which indicated that the applicant had departed Australia. The Tribunal notified the applicant of this information and invited comment, but no response was received. Based on the available evidence, the Tribunal was satisfied that the applicant was not in Australia. Consequently, the Tribunal concluded that the applicant did not satisfy the criterion under section 36(2) of the Act, which mandates that an applicant for a protection visa must be in Australia.

The Tribunal affirmed the decision not to grant the applicant a protection visa, finding it unnecessary to consider the substantive grounds of the protection claim given the failure to meet the jurisdictional requirement of being in Australia.