2119523 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a Vietnamese national. The applicant had departed Australia, and the Tribunal had invited them to comment on this fact.

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. The Tribunal also considered whether it was necessary to assess the applicant's substantive claims for protection given their departure from the country.

The Tribunal reasoned that section 36(2) of the *Migration Act 1958* (Cth) requires an applicant for a protection visa to be in Australia. Movement records indicated the applicant had left Australia in November 2023. Despite being notified of this and invited to respond, the applicant provided no comment. Consequently, the Tribunal was satisfied that the applicant was not in Australia and therefore did not meet this essential criterion for the visa. As a result, the Tribunal concluded it was unnecessary to consider the applicant's substantive claims for protection.

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