1825055 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by applicants who had departed Australia. The core of the dispute was whether the applicants met the threshold requirement for the grant of a protection visa, specifically the criterion that the applicant must be a non-citizen *in* Australia.

The Tribunal was required to determine if the applicants satisfied the criterion under section 36(2) of the *Migration Act 1958* (Cth) that they be a non-citizen in Australia. This involved assessing whether the applicants' presence in Australia at the time of the decision was a prerequisite for the grant of a protection visa.

The Tribunal reasoned that section 65(1) of the *Migration Act 1958* (Cth) mandates that a visa may only be granted if the prescribed criteria are satisfied. It noted that section 36(2) specifically requires an applicant for a protection visa to be in Australia. Movement records indicated that the applicants had left Australia in March 2020. The Tribunal communicated this information to the applicants, inviting 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 protection visas.