1703222 (Refugee)

The Administrative Appeals Tribunal considered an application for protection visas by applicants from Iraq. The applicants were not physically present in Australia at the time of the Tribunal's decision, having departed the country in December 2018, prior to the expiration of their visas. The Tribunal had previously notified the applicants of its records indicating their absence from Australia and invited them to respond.

The primary legal issue before the Tribunal was whether the applicants met the criteria for the grant of a protection visa. Specifically, the Tribunal had to determine if the applicants satisfied the requirement under section 36(2) of the *Migration Act 1958* (Cth) that an applicant for a protection visa must be a non-citizen in Australia.

The Tribunal reasoned that a fundamental criterion for the grant of a protection visa is that the applicant must be in Australia, as stipulated by section 36(2) of the Act. Movement records confirmed that the applicants had left Australia. Despite the applicants' explanation that they had to leave before their visas expired and their hope to obtain a protection visa, the Tribunal was satisfied that they were not in Australia. Consequently, the applicants failed to satisfy this essential criterion, rendering them ineligible for a protection visa. The Tribunal concluded that it was unnecessary to consider the substantive grounds of their protection claims.

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