2101241 (Refugee)

The Administrative Appeals Tribunal considered an application for protection visas by applicants from India. The dispute arose because movement records indicated the applicants had departed Australia, which raised a question about their eligibility for a protection visa.

The primary legal issue before the Tribunal was whether the applicants met the criterion that they must be a non-citizen in Australia to be granted a protection visa, as stipulated by section 36(2) of the relevant Act. The Tribunal also had to determine if it was necessary to consider the substantive grounds of the protection claims given the applicants' absence from Australia.

The Tribunal reasoned that under section 65(1) of the Act, a visa can only be granted if prescribed criteria are satisfied. Section 36(2) specifically requires the applicant to be in Australia. As movement records showed the applicants had left Australia in October 2022, they did not satisfy this fundamental criterion. The Tribunal had invited the applicants to comment on this information, but received no response. Consequently, the Tribunal was satisfied that the applicants were not in Australia and therefore could not be granted protection visas, rendering it unnecessary to examine the merits of their protection claims.

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