1917034 (Refugee)

The Administrative Appeals Tribunal considered an application for protection visas by applicants who were not physically present in Australia. The dispute centred on whether the applicants met the eligibility criteria for a protection visa, specifically the requirement of being in Australia at the time of the decision.

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 mandates that an applicant for a protection visa must be a non-citizen in Australia. The Tribunal also had to determine if the applicants' absence from Australia precluded them from being granted such a visa.

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 met. It noted that movement records indicated the applicants had departed Australia in April 2022. The Tribunal had 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, they failed to meet the criterion in section 36(2). As this fundamental requirement was not met, the Tribunal found it unnecessary to consider the substantive grounds of their protection claims.

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