1731045 (Refugee)

The Administrative Appeals Tribunal considered an application for protection visas by two applicants who were not in Australia. The dispute centred on whether the applicants met the eligibility criteria for a protection visa, specifically the requirement of being within the migration zone.

The primary legal issue before the Tribunal was whether the applicants satisfied the criterion that they be a non-citizen in Australia, as stipulated by section 36(2) of the *Migration Act 1958* (Cth). This section 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. Evidence of movement records indicated that the applicants had departed Australia in June 2019. The Tribunal notified the applicants of this information and invited them to provide comments, 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 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.