1620900 (Refugee)

The applicants, who claim to be citizens of Malaysia, applied for protection visas in May 2016. The dispute concerned whether these applicants were eligible for such visas, given that they had departed Australia. The decision was made by a Member of the Tribunal.

The primary legal issue before the Tribunal was whether the applicants satisfied the criteria for a protection visa, specifically the requirement that the applicant be a non-citizen in Australia at the time of the decision. The Tribunal also considered, but ultimately did not need to determine, the substantive claims for protection based on a well-founded fear of persecution.

The Tribunal reasoned that section 36(2) of the Migration Act 1958 requires an applicant for a protection visa to be in Australia. The Department of Immigration's movement records indicated that the applicants had left Australia in September 2017. The Tribunal notified the applicants of this information and invited comment, but no response was received. Based on this evidence, the Tribunal was satisfied that the applicants were not in Australia and therefore did not meet the criterion under section 36(2) of the Act. Consequently, the Tribunal concluded that it was unnecessary to consider the applicants' substantive claims regarding their fear of persecution.

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