1822193 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa by applicants who had departed Australia. The core of the dispute revolved around the applicants' physical presence in Australia at the time of the decision.

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

The Tribunal reasoned that section 65(1) of the Act mandates that prescribed criteria for a visa must be satisfied for its grant. Crucially, section 36(2) requires an applicant for a protection visa to be in Australia. Movement records indicated that the applicants had left Australia in April 2020. The Tribunal notified the applicants of this information and invited comment, but received no response. Based on the evidence of their departure and the lack of any response, the Tribunal was satisfied that the applicants were not in Australia, and therefore did not meet the criterion under section 36(2). Consequently, it was unnecessary to consider the substantive grounds of their protection claims.

The Tribunal affirmed the decision not to grant the applicants protection visas.