2202262 (Refugee)

The Administrative Appeals Tribunal considered the claims of two applicants seeking protection visas for Australia. The dispute arose because movement records indicated that both applicants had departed Australia, one in March 2023 and the other in September 2022.

The primary legal issue before the Tribunal was whether the applicants satisfied the criteria for a protection visa, specifically the requirement under section 36(2) of the Act that an applicant must be a non-citizen *in* Australia. The Tribunal also considered whether it had adequately provided the applicants with an opportunity to respond to adverse information.

The Tribunal reasoned that a protection visa can only be granted if the applicant is physically present in Australia. As the movement records clearly showed the applicants had left Australia, they did not meet this fundamental criterion. The Tribunal had notified the applicants of this information and invited them to comment, but they failed to respond. Consequently, the Tribunal was satisfied that the applicants were not in Australia and therefore could not be granted protection visas, rendering it unnecessary to consider the merits of their substantive claims.

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