2108033 (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' movement records accurately reflected their location outside of Australia.

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. Crucially, section 36(2) establishes that being in Australia is a prerequisite for a protection visa. The Tribunal noted that movement records indicated the applicants had departed Australia and had not returned. After advising the applicants of this information and inviting comment, the Tribunal was satisfied that the applicants were not in Australia. Consequently, they failed to meet the criterion under section 36(2), rendering it unnecessary to consider the substantive grounds of their protection claims.

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