2304127 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa by a Vietnamese national. The applicant had left Australia, and the Tribunal was reviewing a decision not to grant the visa.

The primary legal issue before the Tribunal was whether the applicant satisfied the criterion for a protection visa that they must be a non-citizen in Australia. This criterion is stipulated by section 36(2) of the *Migration Act 1958* (Cth), which requires the decision maker to be satisfied that the prescribed criteria for the visa have been met, including the applicant's presence in Australia.

The Tribunal reasoned that movement records indicated the applicant had departed Australia in January 2024. The Tribunal notified the applicant of this information and invited comment, but no response was received. Consequently, the Tribunal was satisfied that the applicant was not in Australia, and therefore did not meet the essential criterion under section 36(2) of the *Migration Act 1958* (Cth). As this criterion was not met, the Tribunal concluded it was 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.