1832001 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by certain applicants. The dispute centred on whether the applicants met the criteria for the grant of a protection visa, specifically the requirement that they be physically present 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 it was necessary to consider the substantive claims for protection given the preliminary issue of the applicants' location.

The Tribunal reasoned that a protection visa can only be granted if the applicant is in Australia. Evidence from movement records indicated that the applicants had departed Australia in July 2020. The Tribunal notified the applicants of this information and invited them to comment, but no response was received. Consequently, the Tribunal was satisfied that the applicants were not in Australia, and therefore did not meet the criterion under section 36(2). As this criterion was not met, the Tribunal concluded it was unnecessary to assess the applicants' substantive claims for protection.

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