1728106 (Refugee)

The Administrative Appeals Tribunal considered an application for protection visas by applicants from China. The core dispute revolved around the applicants' eligibility for a protection visa, specifically whether they met the criterion of being a non-citizen in 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 required the Tribunal to determine the applicants' physical location and visa status.

The Tribunal reasoned that a protection visa can only be granted if the applicant is physically present in Australia. Evidence from the Department of Home Affairs indicated that the applicants had departed Australia in July 2019 and did not hold current visas allowing their return. The Tribunal communicated this information to the applicants 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 essential criterion under section 36(2) of the Act. As this criterion was not met, the Tribunal found it unnecessary to consider the substantive grounds of their protection claims. The Tribunal affirmed the decision not to grant the protection visas.