1727735 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa by applicants from China. The core dispute concerned whether the applicants met the eligibility criteria for a protection visa, specifically the requirement of being present in Australia.

The primary legal issue before the Tribunal was whether the applicants satisfied the criterion under section 36(2) of the *Migration Act 1958* (Cth) that they be a non-citizen in Australia. This criterion is a prerequisite for the grant of a protection visa under section 65(1) of the Act.

The Tribunal reasoned that a protection visa can only be granted if the applicant is physically present in Australia. Movement records indicated that the applicants had left Australia in April 2020. The Tribunal notified the applicants of this information and invited comment, but received no response. Based on the available evidence, the Tribunal was satisfied that the applicants were not in Australia, and therefore did not meet the essential criterion under section 36(2). Consequently, it was unnecessary for the Tribunal to consider the substantive claims for protection. The Tribunal affirmed the decision not to grant the protection visas.