1611175 (Refugee)

[2019] AATA 6381

1611175 (Refugee) [2019] AATA 6381 (29 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1611175

COUNTRY OF REFERENCE:                  Indonesia

MEMBER:Nathan Goetz

DATE:29 October 2019

PLACE OF DECISION:  Sydney

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

Statement made on 29 October 2019 at 9:45am

CATCHWORDS

REFUGEE – protection visa – Indonesia – applicants not in Australia – decision under review affirmed 

LEGISLATION

Migration Act 1958 (Cth), ss 36, 65, 424A

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 and Border Protection to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants, who claim to be citizens of Indonesia and married, both arrived in Australia [in] April 2015 on tourist visas.

3. On 6 July 2015 they applied for protection visas with [Applicant 1] as the primary applicant raising her own claims for protection. [The second applicant] did not raise his own claims for protection but was included as a member of the same family unit as [Applicant 1].

4. On 10 July 2015 the applicants were advised in writing by the delegate that their protection applications may be decided without requesting further information from them. The same correspondence provided them with the opportunity to contact the department within 7 days to arrange an interview to discuss their claims. The applicants did not take up this opportunity.

5. On 29 June 2016 the delegate refused to grant the protection visas. Both applicants applied to the Tribunal for a review of this decision on 22 July 2016.

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

7. 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. 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.

8. On 14 October 2019 the Tribunal wrote to the applicants under s.424A of the Act to advise them of information that may be a reason for refusing to grant them the protection visas. In the letter, the Tribunal advised them that department movement records indicated had not been in Australia since [August] 2019 and that consequently, they would not meet the criteria for a protection visa. The applicants were invited to comment on or respond to this information in writing by 28 October 2019.

9. The Tribunal never received a response from the applicants.

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) and cannot be granted protection visas. Having reached this conclusion, it is not necessary to consider the applicants' substantive case for the grant of the visa.

    DECISION

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

    Nathan Goetz
    Member