2116973 (Refugee)

The Administrative Appeals Tribunal considered an application for protection visas by applicants who had departed Australia. The dispute arose because movement records indicated the applicants were no longer in Australia, a prerequisite for the grant of a protection visa.

The primary legal issue before the Tribunal was whether the applicants satisfied the criterion that they be a non-citizen in Australia, as stipulated by section 36(2) of the relevant Act. This required the Tribunal to determine if the applicants' departure from Australia precluded them from meeting this essential requirement.

The Tribunal reasoned that under section 65(1) of the Act, a visa can only be granted if the prescribed criteria are met. Section 36(2) specifically requires an applicant for a protection visa to be in Australia. The Tribunal noted that movement records showed the applicants had left Australia in September 2023. Despite being invited to comment on this information, the applicants did not respond. Consequently, the Tribunal was satisfied that the applicants were not in Australia and therefore did not meet the criterion under section 36(2). As this fundamental requirement was not met, the Tribunal concluded it was unnecessary to consider the substantive grounds of their protection claims.

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