1728444 (Refugee)

The Administrative Appeals Tribunal considered an application for protection visas by applicants who had departed Australia. The dispute centred on whether the applicants met the eligibility criteria for a protection visa, specifically the requirement of being in Australia at the time of the decision.

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. The Tribunal also had to determine if it was necessary to consider the substantive claims for protection given the applicants' location.

The Tribunal reasoned that a protection visa can only be granted if the applicant is physically present in Australia, as mandated by section 36(2) of the Act. Movement records indicated that the applicants had left Australia in March 2020. 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 essential criterion for a protection visa.

The Tribunal affirmed the decision not to grant the applicants protection visas, as it was not necessary to consider their substantive claims for protection once the fundamental eligibility requirement of being in Australia was not met.