2302805 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant from Vietnam. The applicant was not physically present in Australia at the time of the Tribunal's decision. The dispute centred on whether the applicant met the eligibility 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 that they be a non-citizen in Australia, as stipulated by section 36(2) of the Migration Act 1958 (Cth). This section is a mandatory requirement for the grant of a protection visa.

The Tribunal reasoned that section 65(1) of the Act mandates that a visa can only be granted if all prescribed criteria are met. As the applicant was outside the migration zone, having departed Australia in September 2023 and remaining outside the country according to departmental records, they failed to satisfy the criterion in section 36(2). The Tribunal had notified the applicant of this issue and invited comment, but no response was received. Consequently, the Tribunal concluded that the applicant did not meet the jurisdictional requirement of being in Australia and therefore could not be granted a protection visa, rendering it unnecessary to consider the substantive grounds of their protection claim. The Tribunal affirmed the decision not to grant the protection visa.