2307760 (Refugee)

The Administrative Appeals Tribunal, constituted by Member Mary-Ann Cooper, considered an application for protection visas by two applicants who had previously departed Australia. The dispute centred on whether the applicants met the eligibility criteria for a protection visa, specifically the requirement of being present in Australia.

The primary legal issue before the Tribunal was whether the applicants satisfied the criterion under section 36(2) of the Migration Act 1958 (Cth), which mandates that an applicant for a protection visa must be a non-citizen in Australia. This criterion is a prerequisite for the grant of such a visa under section 65(1) of the Act.

The Tribunal reasoned that movement records indicated both applicants had left Australia, one in March 2024 and the other in August 2023. The Tribunal had notified the applicants via email of this information and invited them to provide comments, warning that a decision might be made without further action if no response was received. As the applicants did not respond to this correspondence, the Tribunal was satisfied they were not in Australia. Consequently, they failed to meet the criterion under section 36(2) and were therefore ineligible for protection visas. The Tribunal concluded that it was unnecessary to consider the substantive grounds of their protection claims.

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