1910418 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by individuals who had departed Australia. The core of the dispute concerned whether the applicants met the eligibility criteria for a protection visa, specifically the requirement of being physically present within Australia.

The Tribunal was required to determine whether the applicants satisfied the criterion stipulated in section 36(2) of the *Migration Act 1958* (Cth), which mandates that an applicant for a protection visa must be a non-citizen *in Australia*. This necessitated an examination of the applicants' presence within Australia at the time of the decision.

The Tribunal's reasoning focused on the statutory requirement of presence in Australia. Movement records indicated that the applicants had left Australia in November 2023. The Tribunal notified the applicants of this information and invited 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 essential criterion was not met, the Tribunal concluded it was unnecessary to consider the substantive grounds of their protection claims. The Tribunal affirmed the decision not to grant the protection visas.