2316500 (Refugee)

This matter concerned an application for merits review of a delegate's decision to refuse the applicant, a citizen of China, a protection visa. The applicant had arrived in Australia on a visitor visa, which subsequently expired, and then applied for a protection visa. Crucially, the applicant departed Australia in November 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 a protection visa, specifically the requirement under section 36(2) of the *Migration Act 1958* (Cth) that the applicant be a non-citizen in Australia. The Tribunal was also required to consider the procedural implications of the applicant's departure from Australia and his subsequent failure to respond to information provided by the Tribunal.

The Tribunal reasoned that a protection visa can only be granted if the applicant is physically present in Australia. Having established that the applicant had departed Australia, the Tribunal concluded that he could not satisfy this fundamental criterion. The Tribunal had invited the applicant to comment on this information under section 424A of the Act, warning that failure to respond would lead to the affirmation of the delegate's decision and the loss of the right to a hearing. As the applicant did not respond, the Tribunal proceeded to make a decision without a hearing.

Consequently, the Tribunal affirmed the delegate's decision not to grant the applicant a protection visa, finding that the applicant did not meet the requirements of section 36(2) of the Act. The Tribunal deemed it unnecessary to consider the substantive grounds of the applicant's protection claim given his failure to satisfy the presence requirement.