1609455 (Refugee)

[2018] AATA 142

1609455 (Refugee) [2018] AATA 142 (15 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1609455

COUNTRY OF REFERENCE:                  India

MEMBER:Rosa Gagliardi

DATE:15 January 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 15 January 2018 at 9:41pm

CATCHWORDS

Refugee – Protection visa – India – Applicant departed Australia

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 a decision made by a delegate of the Minister for Immigration [in] June 2016 to refuse to grant the visa applicant a Protection (Class XA) Subclass 866 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa [in] July 2015. The delegate refused to grant the visa on the basis that the visa applicant did not meet the definition of a refugee.

3. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. 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.

5. 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.

6. The Department of Immigration’s movement records indicate that the applicant is not in Australia.  It appears that he departed Australia [in] April 2017.  The Tribunal wrote to the applicant, in the interests of natural justice, advising that its records showed that he is not in Australia and therefore could not be granted a protection visa.  The applicant was invited to comment on the information. 

7. The applicant has not responded to the Tribunal’s invitation to comment.

8. 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. 

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

   DECISION

10. The Tribunal affirms the decision not to grant the applicant a Protection visa. 

    Rosa Gagliardi
    Member