1816670 (Refugee)

The Administrative Appeals Tribunal considered the claims of multiple applicants for protection visas, with the primary dispute centering on whether the applicants met the threshold requirement of being physically present in Australia. The applicants, represented by their legal representative, had indicated their intention to participate in a hearing via audio-visual link from [Country 1], suggesting they were no longer in Australia.

The central legal issue before the Tribunal was whether the applicants satisfied the criteria for a protection visa, specifically the requirement under section 36(2) of the Migration Act 1958 (Cth) that an applicant must be a non-citizen in Australia. The Tribunal also had to consider the status of the third, fourth, and fifth applicants, who had not made independent claims for protection but were included in the application as family members.

The Tribunal's reasoning focused on the jurisdictional prerequisite of presence in Australia. Movement records indicated that the primary and second applicants had departed Australia in August 2021, at which point their bridging visas ceased. The Tribunal provided the applicants with an opportunity, under section 424A of the Act, to comment on this information and the legal implication that they could not be granted protection visas if they were not in Australia. As no response was received by the deadline, the Tribunal concluded that the primary and second applicants did not satisfy section 36(2). Consequently, the Tribunal found that the third, fourth, and fifth applicants, who relied on their family unit connection to a person satisfying the criteria, also failed to meet the requirements of section 36(2).

The Tribunal affirmed the decision not to grant the applicants protection visas, as the fundamental criterion of being in Australia was not met by the primary applicants.