1829367 (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 that the applicant be in Australia.

The primary legal issue before the Tribunal was whether the applicants satisfied the criterion stipulated in section 36(2) of the *Migration Act 1958* (Cth), which requires an applicant for a protection visa to be a non-citizen in Australia. The Tribunal also had to determine if the applicants' movement records, indicating their departure from Australia and lack of a re-entry visa, were determinative of their eligibility.

The Tribunal reasoned that under section 65(1) of the *Migration Act 1958* (Cth), a visa can only be granted if the prescribed criteria are satisfied. As section 36(2) mandates that an applicant must be in Australia to be eligible for a protection visa, and the movement records clearly indicated that both applicants had departed Australia and did not hold a visa permitting re-entry, they failed to meet this fundamental criterion. Despite an invitation to comment on this information, no response was received from the applicants. Consequently, the Tribunal concluded that the applicants did not satisfy the requirements of section 36(2).

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