2209905 (Refugee)

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

The Tribunal was required to determine whether the applicants satisfied the criterion under section 36(2) of the *Migration Act 1958* (Cth) that they be a non-citizen in Australia. This was contingent on the factual finding of whether the applicants were, in fact, still within Australia at the time of the decision.

The Tribunal applied section 65(1) of the *Migration Act 1958* (Cth), which mandates that a visa can only be granted if prescribed criteria are satisfied. It found, based on movement records, that the applicants had departed Australia in September 2022. Despite being notified of this information and invited to comment, the applicants did not respond. 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 essential criterion was not met, the Tribunal concluded it was unnecessary to consider the substantive claims for protection.

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