2316134 (Refugee)

This matter concerned an application for merits review of a delegate's decision to refuse to grant the applicant, a citizen of India, a protection visa. The applicant had previously arrived in Australia in February 2018, had his visa cancelled in August 2018, and subsequently applied for a protection visa on 11 November 2019. The delegate refused this application on 22 September 2023. The applicant applied to the Tribunal for a review of this decision on 9 October 2023, but departed Australia in October 2023 and had not returned.

The primary legal issue before the Tribunal was whether the applicant met the criteria for the grant of a protection visa. Specifically, the Tribunal was required to determine if the applicant was a non-citizen present in Australia, as stipulated by section 36(2) of the *Migration Act 1958* (Cth), which is a prerequisite for granting such a visa under section 65(1) of the Act.

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. In accordance with section 424A of the Act, the Tribunal notified the applicant that his absence from Australia was information that would likely lead to the affirmation of the decision under review, and invited him to respond by 15 March 2024. The applicant failed to provide any response. Consequently, the applicant lost his right to appear at a hearing, and the Tribunal proceeded to make a decision based on the available information. Being satisfied that the applicant was not in Australia, the Tribunal concluded that he did not meet the criterion under section 36(2) and therefore could not be granted a protection visa.

As a result of this finding, the Tribunal determined it was unnecessary to consider the substantive grounds of the applicant's claim for protection. The Tribunal affirmed the delegate's decision not to grant the applicant a protection visa.