2209207 (Refugee)

The Administrative Appeals Tribunal considered an application for protection visas by individuals who were not located within Australia. The dispute centred on whether the applicants met the eligibility criteria for a protection visa, specifically concerning their physical presence within the migration zone.

The primary legal issue before the Tribunal was whether the applicants satisfied 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 if the applicants' absence from Australia precluded them from being granted such a visa.

The Tribunal reasoned that a protection visa can only be granted if the applicant is physically present in Australia, as mandated by section 36(2) of the Act. Evidence of the applicants' movement records indicated they had departed Australia. The Tribunal notified the applicants of this information and invited a response, which was not provided. Consequently, the Tribunal was satisfied that the applicants were not in Australia and therefore did not meet the essential criterion for a protection visa.

The Tribunal affirmed the decision not to grant the applicants protection visas, as it was not necessary to consider the substantive claims for protection given the failure to meet the jurisdictional requirement of being in Australia.