1811272 (Refugee)

This matter concerned an application for review of a delegate's decision to refuse a protection visa. The applicant, who claimed to be a citizen of Malaysia, had applied for the visa on 15 January 2018. The review was heard by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the prescribed criteria for the grant of a protection visa. Specifically, the Tribunal had to determine if the applicant satisfied the requirement under s.36(2) of the *Migration Act 1958* (Cth) that a protection visa applicant must be a non-citizen in Australia.

The Tribunal reasoned that a protection visa can only be granted if the applicant is physically present in Australia. Movement records indicated that the applicant had departed Australia in August 2019. The Tribunal had notified the applicant of this information and invited comments by 6 March 2020, but no response was received. Consequently, the Tribunal was satisfied that the applicant was not in Australia and therefore did not meet the criterion in s.36(2) of the Act. As this criterion was not met, the Tribunal found it unnecessary to consider the applicant's substantive claims for protection. The Tribunal affirmed the decision not to grant the applicant a protection visa.