1709491 (Refugee)

The Administrative Appeals Tribunal considered an application for protection visas by applicants from Iran. The core dispute concerned whether the applicants met the eligibility criteria for a protection visa, specifically the requirement that the applicant be physically present within Australia.

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

The Tribunal's reasoning focused on the jurisdictional requirement of presence in Australia. Movement records indicated that the applicants had departed Australia on 28 February 2018. The Tribunal notified the applicants of this information and invited comment, but no response was received. Consequently, the Tribunal was satisfied that the applicants were not in Australia, and therefore did not meet the essential criterion under section 36(2). As this threshold requirement was not met, the Tribunal concluded it was unnecessary to assess the substantive claims for protection. The Tribunal affirmed the decision not to grant the protection visas.