1717869 (Refugee)

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

The primary legal issue before the Tribunal was whether the applicants satisfied the criterion stipulated in section 36(2) of the *Migration Act 1958* (Cth), which requires an applicant for a protection visa to be a non-citizen *in Australia*. This necessitated a determination of the applicants' physical location at the time of the decision.

The Tribunal reasoned that section 65(1) of the *Migration Act 1958* (Cth) mandates that a visa can only be granted if prescribed criteria are met. It found, based on movement records, that the applicants had left Australia in January 2019. The Tribunal had notified the applicants of this information and invited comment, but received no response. Consequently, the Tribunal was satisfied that the applicants were not in Australia, and therefore did not meet the criterion under section 36(2). As this criterion was not met, the Tribunal concluded it was unnecessary to consider the substantive claims for protection.

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