2100431 (Refugee)

The Administrative Appeals Tribunal considered an application for protection visas by applicants who were not in Australia. The dispute centred on whether the applicants met the eligibility criteria for a protection visa, specifically the requirement of being within Australia.

The primary legal issue before the Tribunal was whether the applicants satisfied the criterion stipulated in section 36(2) of the *Migration Act 1958* (Cth), which requires an applicant for a protection visa to be a non-citizen in Australia. The Tribunal also had to determine if the applicants' claims for protection could be considered given their offshore status.

The Tribunal reasoned that section 65(1) of the *Migration Act 1958* (Cth) mandates that a visa can only be granted if the prescribed criteria are met. As section 36(2) clearly states that a protection visa can only be granted to a non-citizen *in Australia*, and movement records indicated the applicants had departed Australia, they did not satisfy this fundamental criterion. Despite being invited to comment on this information, the applicants failed to respond. Consequently, the Tribunal concluded that the applicants were not in Australia and therefore ineligible for protection visas, rendering it unnecessary to assess the merits of their substantive claims.

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