1606997 (Refugee)

[2018] AATA 5023

1606997 (Refugee) [2018] AATA 5023 (19 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1606997

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Jane Marquard

DATE:19 December 2018

PLACE OF DECISION:  Sydney

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

Statement made on 19 December 2018 at 7:55am

CATCHWORDS
REFUGEE – protection visa – Sri Lanka – applicant not within Australia – returned on Assisted Voluntary Return Program – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), 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 a decision made by a delegate of the Minister for Immigration and Border Protection on 2 May 2016 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 Sri Lanka applied for the visa on 26 May 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 Home Affairs advised the Tribunal on 11 December 2018 that the applicant is not in Australia. It appears that he left Australia on 10 December 2018 under the Assisted Voluntary Return program.

6. The Tribunal is satisfied from the circumstances set out above 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.

   Jane Marquard
   Member