2202152 (Refugee)

The Administrative Appeals Tribunal considered an application for protection visas by individuals 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 met 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 the effect of the applicants' failure to respond to its invitation to comment on the evidence suggesting they had left 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 satisfied. As section 36(2) requires the applicant to be in Australia, and movement records confirmed the applicants had left Australia in February 2022, they could not satisfy this essential criterion. The Tribunal had notified the applicants of this information and invited comment, but no response was received. Consequently, the Tribunal was satisfied that the applicants did not meet the requirements of section 36(2).

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