1613632 (Refugee)

[2020] AATA 2219

1613632 (Refugee) [2020] AATA 2219 (15 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1613632

COUNTRY OF REFERENCE:                   Indonesia

MEMBER:Nathan Goetz

DATE:15 May 2020

PLACE OF DECISION:  Sydney

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

Statement made on 15 May 2020 at 10:05am

CATCHWORDS

REFUGEE – protection visa – Indonesia – applicant left Australia – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 36, 65, 42, 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. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a citizen of Indonesia and arrived in Australia [in] December 2011 as the holder of a student visa. This visa was cancelled [in] May 2012 and the applicant became an unlawful non-citizen in Australia.

3. On 14 October 2015 the applicant applied for the protection visa. On 26 July 2016 the delegate refused to grant the protection visa and the applicant applied to the Tribunal on 26 August 2016 for a review of the refusal decision.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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) 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. Movement records indicate that the applicant is not in Australia. It appears that he left Australia [in] February 2020 and has not returned. On 30 April 2020 the Tribunal wrote to the applicant advising him that records showed he was not in Australia and therefore could not be granted a protection visa. The letter invited the applicant to comment on this information in writing by 14 May 2020. The Tribunal never received a response from the applicant.

   FINDINGS AND REASONS

7. Section 425(1) provides that the Tribunal must invite an applicant to a hearing. However, this obligation does not apply if s.425(2)(c) is applicable. That section provides that the hearing requirement is dispensed with if s.424C (1) or (2) applies to the applicant. In the present case, s.424C(2) applies to the applicant because he was invited to comment on or respond to information that would be a reason, or part of the reason, for affirming the decision: Namely, he did not meet a criteria of the visa because he was not in Australia. As the applicant did not respond to the information, the Tribunal is empowered to make a decision without taking any further action to obtain the applicant’s views on the information, and is not required to invite the applicant to a hearing.

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

   DECISION

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

   Nathan Goetz
   Member