1720391 (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 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 mandates that an applicant for a protection visa must be a non-citizen *in Australia*. The Tribunal was required to determine the applicants' location at the time of the decision.

The Tribunal's reasoning focused on the jurisdictional requirement of presence in Australia. Movement records indicated that the applicants had departed Australia in October 2018. The Tribunal notified the applicants of this information and invited them to respond, but ultimately concluded that the applicants were not in Australia. Consequently, the Tribunal found that the applicants failed to satisfy the criterion under section 36(2) of the Act, rendering them ineligible for a protection visa. As this threshold requirement was not met, the Tribunal deemed it unnecessary to consider the substantive grounds of their protection claims.

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