2014057 (Refugee)

The Administrative Appeals Tribunal considered an application for protection visas by applicants from China. The dispute centred on whether the applicants met the eligibility criteria for a protection visa, specifically the requirement of being physically present in Australia.

The primary legal issue before the Tribunal was whether the applicants satisfied the criterion under s 36(2) of the *Migration Act 1958* (Cth) that they be a non-citizen in Australia. This criterion is a prerequisite for the grant of a protection visa under s 65(1) of the Act.

The Tribunal reasoned that a protection visa can only be granted if the applicant is in Australia. Movement records indicated that the applicants had left Australia in August 2022. 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 in s 36(2). As this essential criterion was not met, the Tribunal found it unnecessary to consider the substantive claims for protection.

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