2119863 (Refugee)

The Administrative Appeals Tribunal (AAT) considered an application for a protection visa by an applicant from Vietnam. The dispute arose because the applicant had apparently left Australia, which raised a threshold issue regarding their eligibility for the visa.

The primary legal issue before the Tribunal was whether the applicant satisfied the criterion that they be a non-citizen in Australia, as stipulated by section 36(2) of the *Migration Act 1958* (Cth), a prerequisite for the grant of a protection visa under section 65(1) of the Act. The Tribunal also had to determine whether it was appropriate to proceed to a decision without further action or an invitation to appear, given the applicant's lack of response to a request for comments.

The Tribunal reasoned that movement records indicated the applicant had departed Australia in November 2023. In accordance with section 424A of the Act, the Tribunal had invited the applicant to comment on this information, dispatching the invitation to their last known email address. As no response was received within the prescribed period, and pursuant to sections 424C(2) and 425(2)(c) of the Act, the Tribunal determined it was appropriate to make a decision without further action or inviting the applicant to appear. Being satisfied that the applicant was not in Australia, the Tribunal concluded that the applicant failed to meet the criterion under section 36(2) and therefore could not be granted a protection visa. Consequently, the Tribunal found it 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.