1809438 (Refugee)

The Administrative Appeals Tribunal considered an application for protection visas by two applicants from China. The dispute arose because the Tribunal's records indicated that the applicants had departed Australia, which raised a question about their eligibility for a protection visa.

The primary legal issue before the Tribunal was whether the applicants satisfied the criterion that they must be a non-citizen in Australia at the time of the decision, as stipulated by section 36(2) of the relevant Act. This criterion is fundamental for the grant of a protection visa.

The Tribunal reasoned that section 65(1) of the Act requires prescribed criteria to be satisfied for a visa to be granted. It noted that section 36(2) specifically mandates that an applicant for a protection visa must be in Australia. The Tribunal's review of movement records indicated that the applicants had left Australia in March 2020. The Tribunal communicated this information to the applicants on 30 April 2020, inviting comment, but received no response. Based on the evidence of their departure and the lack of response, the Tribunal was satisfied that the applicants were not in Australia. Consequently, they failed to meet the criterion under section 36(2).

The Tribunal affirmed the decision not to grant the applicants protection visas, as it was not necessary to consider the substantive grounds of their claims given their failure to meet the basic eligibility requirement of being in Australia.