1916974 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by applicants who were not in Australia. The dispute centred on whether the applicants met the eligibility criteria for the visa, specifically the requirement of being physically present within 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 was also required to determine if the applicants' absence from Australia precluded them from being granted such a visa.

The Tribunal reasoned that a protection visa can only be granted if the applicant is in Australia, as mandated by section 36(2) of the Act. Evidence from movement records indicated that the applicants had departed Australia in April 2022. The Tribunal had notified the applicants of this information and invited them to provide comments, but no response was received by the date of the decision. Consequently, the Tribunal was satisfied that the applicants were not in Australia, and therefore did not meet the essential criterion for a protection visa.

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