2111611 (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 physically present in Australia at the time of the decision.

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 in Australia. Movement records indicated that the applicants had departed Australia in November 2021. The Tribunal notified the applicants of this information and invited comment, 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). As this 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 protection visas.