1710228 (Refugee)

The Administrative Appeals Tribunal considered an application for protection visas by applicants who were outside of Australia. The dispute centred on whether the applicants met the eligibility criteria for a protection visa, specifically concerning their physical location at the time of the decision.

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), for the grant of a protection visa. This criterion is a prerequisite for a visa grant under section 65(1) of the Act.

The Tribunal reasoned that section 36(2) of the Act expressly requires an applicant for a protection visa to be in Australia. Evidence from movement records indicated that the applicants had departed Australia on 8 February 2018. Despite being notified of this information and invited to comment, the applicants provided no response. Consequently, the Tribunal was satisfied that the applicants were not in Australia, and therefore did not meet the essential criterion for a protection visa. As a result, it was unnecessary for the Tribunal to consider the substantive claims for protection.

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