1913892 (Refugee)

This matter concerned an application for review of a decision by a delegate of the Minister for Home Affairs to refuse to grant the applicant, a citizen of Malaysia, a protection visa. The applicant had applied for the visa on 15 February 2019. The review was heard by Brendan Darcy, a Member of the Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the prescribed criteria for the grant of a protection visa under the *Migration Act 1958* (Cth). Specifically, the Tribunal was required to determine if the applicant was a non-citizen in Australia, as stipulated by section 36(2) of the Act, which is a mandatory criterion for such a visa.

The Tribunal reasoned that under section 65(1) of the Act, a visa can only be granted if all prescribed criteria are satisfied. It noted that section 36(2) requires an applicant for a protection visa to be in Australia. Movement records indicated that the applicant had left Australia in August 2021. The Tribunal notified the applicant of this information and invited comment, but received no response. Consequently, the Tribunal was satisfied that the applicant was not in Australia and therefore did not meet the criterion under section 36(2). As this criterion was not met, 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.