2015914 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa by individuals who had previously departed Australia. The core of the dispute concerned whether the applicants met the fundamental eligibility criterion for a protection visa, namely being present in Australia.

The Tribunal was required to determine if the applicants satisfied the requirements of section 36(2) of the *Migration Act 1958* (Cth), which stipulates that an applicant for a protection visa must be a non-citizen in Australia. This determination was crucial as it formed the threshold for the grant of such a visa.

The Tribunal reasoned that a protection visa can only be granted to an applicant who is physically present in Australia. Evidence from movement records indicated that the applicants had left Australia in 2017 and 2021, respectively. 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 criterion under section 36(2). As this essential 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 protection visas.