1711700 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by individuals who had departed Australia. The core of the dispute concerned whether the applicants met the eligibility requirements for a protection visa, specifically the criterion of being physically present within Australia.

The primary legal issue before the Tribunal was whether 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. This necessitates a determination of the applicants' physical location at the time of the decision.

The Tribunal reasoned that a protection visa can only be granted if the applicant is in Australia. Evidence from movement records indicated that the applicants had left Australia in January 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 criterion under section 36(2) of the Act. As this essential criterion was not met, the Tribunal found it unnecessary to consider the substantive grounds of the applicants' protection claims. The Tribunal affirmed the decision not to grant the protection visas.