2018394 (Refugee)

This matter concerned an application for protection visas by applicants who were not in Australia. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicants met the criteria for the grant of a protection visa.

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). 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 and were not present within the migration zone. The Tribunal had notified the applicants of this information and invited comment, but they had not provided any evidence suggesting an intention to return or a valid visa to do so. Consequently, the Tribunal concluded that inviting them to a hearing would not be an appropriate use of resources, as they could not meet this fundamental requirement. The Tribunal was satisfied that the applicants were not in Australia, and therefore, it was unnecessary to consider the substantive grounds of their protection claims.

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