1601038 (Refugee)

[2018] AATA 2756

1601038 (Refugee) [2018] AATA 2756 (28 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1601038

COUNTRY OF REFERENCE:                  India

MEMBER:Christine Cody

DATE:28 June 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 28 June 2018 at 2:25pm

CATCHWORDS
Refugee – Protection visa – India – Applicant left Australia

LEGISLATION

Migration Act 1958, ss 36, 65, 431

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 a decision made by a delegate of the Minister for Immigration and Border Protection on 24 December 2015 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act). The applicant, who claims to be a citizen of India, applied for the visa on 31 October 2014.

2. For the following reasons, the Tribunal has decided to affirm the decision under review.

   CONSIDERATION OF CLAIMS AND EVIDENCE

3. 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.

4. 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.

5. Movement records indicate that the applicant is not in Australia. It appears that she left Australia on 16 February 2018. The Tribunal wrote to the applicant via her agent advising that its records showed that she is not in Australia and therefore could not be granted a protection visa and inviting the applicant to comment on the information. The agent responded that he tried to contact the applicant but could get no response; the applicant did not advise him that she was leaving Australia and they have not had contact for one year; thus he is unable to comment on anything.  

6. The Tribunal accepts that the movement records indicate that the applicant left Australia on 16 February 2018. The Tribunal is satisfied that the applicant is not in Australia. Therefore, the applicant does not satisfy the requirements of s.36(2) and cannot be granted a protection visa.

7. Having reached this conclusion, it is not necessary to consider the applicant's substantive case for the grant of the visa.

   DECISION

8. The Tribunal affirms the decision not to grant the applicant a protection visa.

   Christine Cody
   Member