2104320 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa by applicants who had departed Australia. The dispute centred on whether the applicants met the eligibility criteria for a protection visa, specifically the requirement of being present in Australia.

The primary legal issue before the Tribunal was whether the applicants satisfied the criterion under section 36(2) of the *Migration Act 1958* (Cth) that they be a non-citizen in Australia. This criterion is fundamental to the grant of a protection visa.

The Tribunal reasoned that a protection visa can only be granted if the applicant is physically present in Australia. Movement records indicated that the applicants had left Australia in September 2023. The Tribunal notified the applicants of this information and invited them to respond, but no response was received. Consequently, the Tribunal was satisfied that the applicants were not in Australia, and therefore did not meet the requirements of section 36(2) of the Act. As this essential criterion was not met, the Tribunal found it unnecessary to consider the substantive claims for protection.

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