2018219 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by applicants who were not in Australia at the time of the decision. The dispute centred on whether the applicants met the threshold requirement for the grant of such a visa, given their location outside the migration zone.

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 also considered whether it was appropriate to invite the applicants to a hearing given their absence from Australia.

The Tribunal reasoned that section 36(2) of the Act mandates that an applicant must be in Australia to be eligible for a protection visa. Movement records indicated that the applicants had departed Australia. The Tribunal had notified the applicants of this information and invited comment, but they had not provided evidence of an intention to return or a valid visa permitting their return. Consequently, the Tribunal determined that inviting the applicants to a hearing would not be an appropriate use of its resources, as they did not appear to meet this fundamental criterion. The Tribunal concluded that it was unnecessary to consider the substantive grounds of the protection claims.

The Tribunal affirmed the decision not to grant the applicants a protection visa.