2315698 (Refugee)

This matter concerned an application for merits review of a delegate's decision to refuse to grant the applicant, a citizen of Malaysia, a protection visa. The applicant had arrived in Australia in May 2023 and applied for a protection visa in July 2023, which was refused in September 2023. The applicant subsequently departed Australia in October 2023 and had not returned at the time of the review.

The primary legal issue before the Tribunal was whether the applicant met the criteria for the grant of a protection visa, specifically the requirement under s 36(2) of the *Migration Act 1958* (Cth) that the applicant be a non-citizen in Australia. The Tribunal also considered the procedural implications of the applicant's departure from Australia and her failure to respond to information raised by the Tribunal.

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 in October 2023 and had not returned. The Tribunal had invited the applicant to comment on this information, which was central to the refusal, but the applicant failed to respond. This failure meant the applicant lost the right to a hearing and the Tribunal proceeded to make a decision based on the available information. As the applicant was not in Australia, she did not satisfy the criterion under s 36(2) of the Act, rendering it unnecessary to consider the substantive grounds of her protection claim.

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