2207984 (Refugee)

The applicant, a citizen of Fiji, sought a protection visa. The dispute arose when the Tribunal, considering the application, found that the applicant was no longer in Australia, having departed on 17 January 2023. The Tribunal affirmed the decision not to grant the protection visa.

The primary legal issue before the Tribunal was whether the applicant satisfied the criteria for a protection visa, specifically the requirement that the applicant be a non-citizen *in Australia*. The Tribunal also considered whether it was necessary to further invite the applicant to comment or appear, given the applicant's absence from Australia.

The Tribunal reasoned that under section 36(2) of the *Migration Act 1958* (Cth), a criterion for a protection visa is that the applicant must be in Australia. Movement records indicated the applicant had left Australia. While the applicant's daughter responded to the Tribunal's notification, stating the applicant had returned to Fiji for family reasons, this did not dispute the fact of her absence from Australia. The Tribunal scheduled a hearing, which the applicant did not attend. As the applicant's absence from Australia was not disputed, the Tribunal concluded it was satisfied the applicant was not in Australia and therefore did not meet the criterion under section 36(2). Consequently, the Tribunal found it unnecessary to consider the substantive grounds for the protection visa claim.