2102845 (Refugee)

This matter concerned an application for review of a delegate of the Minister's decision to refuse to grant the applicant, a citizen of India, a protection visa. The applicant arrived in Australia in October 2017 and applied for the visa in December 2017. The delegate refused the application in February 2021, and the applicant sought review by the Tribunal. Crucially, the applicant departed Australia in September 2021 and had not returned at the time of the Tribunal's decision.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa, specifically the requirement under section 36(2) of the *Migration Act 1958* (Cth) that an applicant for such a visa must be a non-citizen in Australia. The Tribunal was required to determine if the applicant's departure from Australia rendered him ineligible for the visa.

The Tribunal reasoned that a protection visa can only be granted if the applicant is physically present in Australia. It noted that the applicant had departed Australia and was therefore not in Australia at the time of the decision. The Tribunal had invited the applicant to comment on this fact, but he did not respond. Consequently, the Tribunal concluded that the applicant did not satisfy the criterion under section 36(2) of the Act and could not be granted a protection visa. The Tribunal found it unnecessary to consider the substantive grounds of the applicant's claim for protection.

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