2206409 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa by applicants from India. The core dispute concerned whether the applicants met the eligibility criteria for the visa, specifically the requirement of being present in Australia.

The Tribunal was required to determine whether the applicants satisfied the criterion that they be a non-citizen in Australia, as stipulated by section 36(2) of the relevant Act, for the grant of a protection visa. This involved assessing the applicants' physical presence within Australia at the time of the decision.

The Tribunal reasoned that a protection visa can only be granted if the applicant is physically in Australia. Movement records indicated that the applicants had departed Australia in July 2023. The Tribunal notified the applicants of this information and invited them to provide comments by 15 May 2024. As no response was received by the time of the decision, the Tribunal was satisfied that the applicants were not in Australia. Consequently, they failed to satisfy the criterion under section 36(2) and were therefore ineligible for a protection visa. The Tribunal affirmed the decision not to grant the visa, and it was not necessary to consider the substantive grounds of their protection claim.