1609526 (Refugee)

This matter concerned an application for protection visas by two applicants who had departed Australia. The Administrative Appeals Tribunal, with Member Nathan Goetz presiding, was tasked with reviewing the initial decision to refuse these visas.

The primary legal issue before the Tribunal was whether the applicants satisfied the prescribed criteria for a protection visa, specifically the requirement under section 36(2) of the *Migration Act 1958* (Cth) that an applicant must be a non-citizen in Australia. The Tribunal also considered its procedural obligations under sections 424C(2) and 425(3) of the Act in relation to adverse information provided to the applicants.

The Tribunal reasoned that a protection visa can only be granted if the applicant is physically present in Australia. It had received adverse information from departmental movement records indicating that both applicants had departed Australia and had not returned. The applicants were given an opportunity to respond to this information but failed to do so. Consequently, the Tribunal determined that it was satisfied the applicants were not in Australia, meaning they did not meet the criterion under section 36(2) of the Act. As this essential criterion was not met, the Tribunal found it unnecessary to consider the substantive grounds of their protection claims.

The Tribunal affirmed the decision not to grant the applicants protection visas.