2015015 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa by two applicants from China. The dispute centred on whether the applicants met the eligibility criteria for a protection visa, specifically concerning their physical location at the time of the application and decision.

The primary legal issue before the Tribunal was whether the applicants satisfied the criterion that they be a non-citizen in Australia, as stipulated by section 36(2) of the *Migration Act 1958* (Cth), for the grant of a protection visa. The Tribunal was required to determine if the applicants' presence in Australia was a prerequisite for the grant of such a visa.

The Tribunal reasoned that section 36(2) of the *Migration Act 1958* (Cth) mandates that an applicant for a protection visa must be in Australia. Evidence from movement records indicated that both applicants had departed Australia. 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 essential criterion for a protection visa. As this fundamental requirement was not met, the Tribunal deemed it unnecessary to consider the substantive grounds of their protection claims.

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