2004608 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a Malaysian citizen. The applicant had lodged his visa application while in Australia, but subsequently departed the country before the Tribunal's decision. The Tribunal had invited the applicant to comment on the fact that his departure from Australia meant he no longer met a key criterion for the visa, but received no response.

The central legal issue before the Tribunal was whether the applicant satisfied the criteria for a protection visa, specifically the requirement that the applicant must be a non-citizen *in* Australia at the time of the decision. The Tribunal was also required to determine the effect of the applicant's failure to respond to the invitation to comment on this issue.

The Tribunal reasoned that section 36(2) of the *Migration Act 1958* (Cth) mandates that an applicant for a protection visa must be in Australia. The evidence showed that the applicant had departed Australia in November 2021. As the applicant did not respond to the invitation to comment on this critical fact, the Tribunal was satisfied that the applicant was not in Australia. Consequently, the applicant failed to satisfy the criterion under section 36(2) of the Act.

The Tribunal affirmed the decision not to grant the applicant a protection visa.