1609526 (Refugee)

[2019] AATA 3908

1609526 (Refugee) [2019] AATA 3908 (30 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1609526

COUNTRY OF REFERENCE:                  China

MEMBER:Nathan Goetz

DATE:30 April 2019

PLACE OF DECISION:  Sydney

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

Statement made on 30 April 2019 at 10:05am

CATCHWORDS
REFUGEE – protection visa – China – applicants departed Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 424C, 425

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. The applicants are a married couple and are citizens of China. [In] January 2015 they both arrived in Australia on visitor visas.

2. On 24 March 2015 both applicants applied for protection visas. On 27 May 2016 a delegate of the Minister for Immigration and Border Protection refused to grant the applicants the protection visas under s.65 of the Migration Act 1958 (the Act).

3. On 27 June 2016 the applicants lodged an application for review of the refusal decisions with the Tribunal.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. A visa may be granted only if the decision maker is satisfied that the prescribed criteria for the visa have been satisfied: s.65(1) of the Act.

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

7. On 15 April 2019, the Tribunal wrote to the applicants and informed them that the Tribunal was in possession of adverse information which would be a reason for affirming the decision to refuse both of them protection visas. The Tribunal invited the applicants to comment on or respond to this information in writing by 29 April 2019.

8. The adverse information was from departmental movement records which indicated that [the first named applicant] had departed Australia [in] December 2018 and had not returned, and that [the second named applicant] had departed Australia [in] January 2017 and had not returned.

9. The Tribunal never received a response from the applicants. In these circumstances, the Tribunal has decided to determine the applications without taking any further action to obtain the applicants’ views about the information: s.424C(2) of the Act. As the applicants have not responded to the request to comment on or respond to this information, the applicants are no longer entitled to appear at the Tribunal to give evidence and present arguments: s.425(3) of the Act.

10. 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) of the Act and cannot be granted protection visas.

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

    DECISION

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

    Nathan Goetz
    Member