2205122 (Refugee)

The Administrative Appeals Tribunal considered an application for protection visas by two applicants from India. The dispute arose because the Tribunal's records indicated that the applicants had departed Australia, which would preclude them from satisfying a key criterion for the grant of a protection visa.

The primary legal issue before the Tribunal was whether the applicants met the prescribed criteria for a protection visa, specifically the requirement under section 36(2) of the *Migration Act 1958* (Cth) that an applicant for such a visa must be a non-citizen *in* Australia.

The Tribunal reasoned that a protection visa can only be granted if the applicant is physically present in Australia. Movement records indicated that both applicants had left Australia in July and April 2023 respectively. The Tribunal notified the applicants of this information and invited them to provide comments by 16 August 2023, but no response was received. 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 criterion 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 protection visas.