1615598 (Refugee)

[2017] AATA 2831

1615598 (Refugee) [2017] AATA 2831 (10 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1615598

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Jason Pennell

DATE:10 November 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision of the delegate made [in] September 2016.

Statement made 10 November 2017 at 3.21pm

CATCHWORDS

Refugee – Protection visa – Malaysia – Applicant departed Australia – Decision under review affirmed

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] September 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] May 2016. The delegate refused to grant the visa on the basis that the applicant is not a person to whom Australia has protection obligations pursuant to s.36(2)(a) and s.36(2)(aa) of the Act.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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.

2. 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.

3. On 4 October 2017 the applicant contacted the Tribunal by telephone and advised that she did not intend to appear at the hearing on 10 November 2017 as she was returning to Malaysia. By an email dated 6 October 2017 the applicant advised the Tribunal that she no longer wanted to proceed with her application for review as she was leaving Australia.

4. The Department of Immigration’s movement records indicate that the applicant is not in Australia. It appears that she left Australia [in] October 2017.

5. The hearing was set down for 10 November 2017 at 9.30am. The applicant did not appear at the hearing.

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

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

Jason Pennell

Member