2005731 (Refugee)

The Administrative Appeals Tribunal considered an application for protection visas by two applicants from China. The dispute arose because movement records indicated that both applicants had departed Australia, rendering them ineligible for a protection visa.

The primary legal issue before the Tribunal was whether the applicants met the criteria for a protection visa, specifically the requirement under section 36(2) of the *Migration Act 1958* (Cth) that an applicant must be a non-citizen *in* Australia. The Tribunal also had to determine whether it was necessary to consider the substantive grounds of the protection claims given the applicants' departure from Australia.

The Tribunal reasoned that a protection visa can only be granted if the applicant is physically present in Australia. As movement records showed the applicants had left Australia in August 2023 and May 2024 respectively, they did not satisfy this fundamental criterion. 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 could not be granted protection visas, making it unnecessary to assess the merits of their protection claims. The Tribunal affirmed the decision not to grant the protection visas.