1614955 (Refugee)

The Administrative Appeals Tribunal, constituted by Member Christine Cody, considered an application for protection visas by applicants from China. The dispute centred on whether the applicants met the eligibility criteria for a protection visa, specifically concerning their physical presence in Australia.

The primary legal issue before the Tribunal was whether the applicants satisfied the criterion that they be a non-citizen in Australia, as stipulated by section 36(2) of the *Migration Act 1958* (Cth), which is a prerequisite for the grant of a protection visa under section 65(1) of the Act.

The Tribunal reasoned that a protection visa can only be granted to an applicant who is physically present in Australia. Movement records indicated that the applicants had departed Australia on 17 March 2018. The Tribunal notified the applicants of this information and invited them to comment, but received no response. Consequently, the Tribunal was satisfied that the applicants were not in Australia, and therefore did not meet the essential criterion under section 36(2) of the Act. As this criterion was not met, the Tribunal concluded it was unnecessary to consider the substantive grounds of their protection claims.

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