2118673 (Refugee)

The applicant, a citizen of Pakistan, sought review by the Administrative Appeals Tribunal of a delegate's decision to refuse him a protection visa. The applicant had arrived in Australia in February 2019 and applied for the visa shortly thereafter. In July 2022, the applicant departed Australia and had not returned at the time of the Tribunal's decision.

The primary legal issue before the Tribunal was whether the applicant continued to meet 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 section 65(1) of the Act mandates that a visa can only be granted if the prescribed criteria are satisfied. Crucially, section 36(2) establishes that being in Australia is a criterion for a protection visa. The Tribunal had notified the applicant under section 424A of the Act that his absence from Australia was a reason, or part of a reason, for affirming the delegate's decision. The applicant's migration agent responded, confirming the applicant had voluntarily left for Pakistan and acknowledged being in Pakistan, while also noting difficulties in contacting the applicant. The Tribunal concluded that the applicant could not meet the requirement of being in Australia, and therefore could not satisfy the criteria for a protection visa.

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