2016187 (Refugee)

The Administrative Appeals Tribunal (AAT) considered an application for protection visas by applicants who were not in Australia. The dispute concerned whether the applicants met the criteria for a protection visa, specifically the requirement that an applicant must be in Australia.

The primary legal issue before the Tribunal was whether the applicants satisfied the criterion for a protection visa that they be a non-citizen in Australia, as stipulated by section 36(2) of the Migration Act 1958 (Cth). The Tribunal also had to determine if it was necessary to consider the substantive claims for protection given the applicants' location.

The Tribunal reasoned that section 65(1) of the Migration Act requires that prescribed criteria for a visa be satisfied for a visa to be granted. It noted that section 36(2) mandates that an applicant for a protection visa must be in Australia. Evidence, including movement records, indicated that the applicants had departed Australia. 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 did not meet the criterion in section 36(2). As this fundamental criterion was not met, the Tribunal concluded it was unnecessary to consider the applicants' substantive claims for protection.

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