1604319 (Refugee)

[2017] AATA 2225

1604319 (Refugee) [2017] AATA 2225 (14 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1604319

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Sean Baker

DATE:14 November 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 14 November 2017 at 2:23pm

CATCHWORDS

Refugee – Protection Visa – Malaysia – Applicants offshore – Threshold requirement not met

LEGISLATION

Migration Act 1958, ss. 36(2), 65,

Migration Regulations 1994, Schedule 2

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] March 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act). The applicants, who claim to be citizens of Malaysia, applied for the visas [in] August 2015.

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. The Department of Immigration’s movement records indicate that the applicants are not in Australia. It appears that they left Australia on [date] September 2017. The Tribunal wrote to the applicants advising that its records showed that they are not in Australia and therefore could not be granted protection visas and inviting the applicants to comment on the information and noted that their response was due 13 November 2017. The first named applicant responded on 13 November 2017, claiming that the email had been in her junk mail and she apologised for the late reply. She said she had just contacted her agent in [Australia] and they asked her to send the email asking for an extension so that they can get those documents to the agent and everything would be settled by 24 November 2017. The applicant also contacted the Tribunal on 14 November 2017 asking if the response had been received.

6. The Tribunal has carefully considered the request for an extension, and telephone call, but has decided not to grant an extension, because the applicants both remain offshore, as of the date of decision and the request for an extension of time does not specifically indicate which documents they are referring to, nor how these would address the issue that was identified in the Tribunal’s letter, nor have the applicants addressed or refuted the issue identified in the letter, that they are both offshore. For these reasons the Tribunal has proceeded with the review without delaying.

7. Having carefully considered the request for an extension and telephone call, the Tribunal finds that this is not a ‘response’. The Tribunal finds that the applicants have lost the right to a hearing, and the Tribunal has proceeded to make a decision on the review without inviting them to a hearing or seeking any further information from them. The Tribunal is mindful, in weighing up this course of action, that the review appears futile, in that the applicants do not meet a threshold requirement, that being their presence in Australia.

8. The Tribunal is satisfied from the circumstances set out above that the applicants are not in Australia. Therefore, the applicants do not satisfy the requirements of s.36(2) and cannot be granted protection visas.

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

   DECISION

10. The Tribunal affirms the decision not to grant the applicants protection visas.

    Sean Baker
    Member