1517519 (Refugee)

[2017] AATA 2943

1517519 (Refugee) [2017] AATA 2943 (5 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1517519

COUNTRY OF REFERENCE:                  China

MEMBER:Linda Symons

DATE:5 December 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 05 December 2017 at 3:49pm

CATCHWORDS

Refugee – Protection visa – China – Primary applicant left Australia – Secondary applicant has made no protection claims – Request for special consideration

LEGISLATION

Migration Act 1958, ss 36, 65

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration [in] November 2015 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants, who claim to be citizens of China, arrived in Australia [in] December 2010. The first named applicant, who is the mother of the second named applicant, was the holder of a [temporary] visa and the second named applicant was the holder of a [different temporary] visa.

3. The first named applicant’s [temporary] visa expired [in] July 2011 and she thereafter remained in Australia as an unlawful non-citizen. [In] February 2015, she was granted a Bridging visa in association with her application for Protection visas. The second named applicant’s [temporary] visa expired [in] March 2013 and he thereafter remained in Australia as an unlawful non-citizen. [In] February 2015, he was granted a Bridging visa in association with his application for Protection visas.

4. [In] January 2015, the applicants applied to the Department of Immigration and Border Protection (the Department) for Protection visas. [In] November 2015, the Department refused to grant their application. On 18 December 2015, they applied to the Tribunal for review of those decisions.  

5. For the following reasons, the Tribunal has decided to affirm the decisions under review.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Under s.65(1) a visa may be granted only if the decision maker is satisfied that the prescribed criteria for the visa have been satisfied.

7. So far as is relevant to this matter, s.36(2) of the Act provides that a criterion for a Protection visa is that the applicant for the visa is a non-citizen in Australia. This means that a Protection visa may only be granted if the applicant is in Australia.

8. The movement records of the Department indicate that the first named applicant is not in Australia. It appears that she left Australia [in] January 2017. The Tribunal wrote to the first named applicant advising that the records showed that she was not in Australia and therefore could not be granted a Protection visa and inviting her to comment on or respond to the information in writing by 5 December 2017. The Tribunal did not receive a response from the first named applicant.

9. The first named applicant is the primary applicant and the second named applicant is a secondary applicant who is a member of the same family unit as the first named applicant. He did not make any claims for protection in his own right. Section 36(2) of the Act provides that a criterion for a Protection visa for a secondary applicant who is in Australia and is a member of the same family unit as the primary applicant, is that the primary applicant holds a Protection visa. As the first named applicant cannot be granted a Protection visa, the second named applicant is unable to satisfy the criteria for a Protection visa.

10. The Tribunal wrote to the second named applicant advising him of the above and inviting him to comment on or respond to the information in writing by 5 December 2017. On 30 November 2017, the Tribunal received a response by email from the second named applicant. In his response, he stated that his mother (the first named applicant) left Australia because there was something urgent she needed to deal with. He stated that it is difficult for his mother to return to Australia but she wants him to stay in Australia as it is a safe place for him. He stated that he does not feel like returning to China as he is afraid that he will receive unfair treatment and he is used to life in Australia which is more liberal and democratic. He requested that he be offered special consideration. The Tribunal does not consider his response to be a claim for protection as he has not claimed that he fears serious harm or significant harm, or why he fears such harm, if he returns to China.

11. The Tribunal is satisfied from the circumstances set out above that the first named applicant is not in Australia. Therefore, the first named applicant does not satisfy the requirements of s.36(2) of the Act and cannot be granted a Protection visa. Having reached this conclusion, it is not necessary to consider the first named applicant's substantive case for the grant of the visa.

12. As the first named applicant does not satisfy the criteria in s.36(2)(a) or (aa) of the Act and does not  hold a Protection visa, the second named applicant is unable to satisfy the criteria in s.36(2)(b) or (c) of the Act. Accordingly, the second named applicant does not satisfy the criterion in s.36(2) of the Act.

    DECISION

13. The Tribunal affirms the decision not to grant the applicants Protection visas.

    Linda Symons
    Member