1621085 (Refugee)

[2019] AATA 6419

1621085 (Refugee) [2019] AATA 6419 (20 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1621085

COUNTRY OF REFERENCE:                   China

MEMBER:David Barker

DATE:20 November 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the first named applicant’s protection visa.

The Tribunal does not have jurisdiction to review the decision to not grant the second named applicant’s protection visa.

Statement made on 20 November 2019 at 1:41pm

CATCHWORDS

REFUGEE – protection visa – China – applicant not in Australia – no response received – second applicant withdrew application – no jurisdiction in respect to second applicant – decision under review affirmed 

LEGISLATION

Migration Act 1958 (Cth), 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 decisions made by a delegate of the Minister for Immigration and Border Protection on 16 November 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act). The applicants, who claim to be citizens of China, applied for the visas on 8 October 2015.

2. The applicants, who claim to be citizens of China, arrived in Australia [in] September 2015. The first named applicant, who is the spouse of the second named applicant, was the holder of a subclass FA 600 visitor visa, as was the second named applicant.

3. The applicants applied to the Department of Immigration and Border Protection (the Department) for protection visas on 8 October 2015.  The first named applicant, as the primary visa applicant and the second named applicant applied for a protection visa as a member of her family unit.

4. For the following reasons, 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.

6. 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.

7. Movement records indicate that the first named applicant is not in Australia. It appears that she left Australia [in] July 2018. The Tribunal wrote to the first named applicant, through her authorised representative and recipient, advising that the records showed that she was not in Australia and therefore could not be granted a protection visa and inviting her to comment on or respond to the information in writing by 18 October 2019. The Tribunal did not receive a response from the first named applicant.

8. The Tribunal is satisfied from the circumstances set out above that the first named applicant is not in Australia. Therefore, the first named applicant does not satisfy the requirements of s.36(2) of the Act and cannot be granted a protection visa. Having reached this conclusion, it is not necessary to consider the first named applicant's substantive case for the grant of the visa.

   The second named visa applicant 

9. The Tribunal is aware that each review applicant has standing to apply for review in their own right, irrespective of the status of any other applications with which theirs has been combined, even if the outcome of those other applications may affect their ability to meet the visa criteria.  There is nothing to prevent persons who at the time of visa application claimed to be members of a family unit of a person to whom Australia owed protection obligations later making their own protection claims following the death or withdrawal of a review applicant. However, if they do not make their own claims for protection, the review application will remain valid but they will ultimately be unable to satisfy the criteria for the grant of the visa.

10. The first named applicant is the primary applicant and the second named applicant is a secondary applicant who is a member of the same family unit as the first named applicant. He did not make any claims for protection in his own right. Section 36(2) of the Act provides that a criterion for a protection visa for a secondary applicant who is in Australia and is a member of the same family unit as the primary applicant, is that the primary applicant holds a protection visa.

11. The Tribunal wrote to the second named applicant, through his authorised representative, advising him of the indication the first named applicant left Australia [in] July 2018 and therefore could not be granted a Protection visa and inviting him to comment on or respond to the information in writing by 18 October 2019.  On 18 October 2019, the Tribunal received a response by email from the applicant’s authorised representative, who stated:

    I have contacted the husband of [Applicant 1] (date of birth: [provided]). The husband, [Applicant 2] (date of birth: [provided]) confirmed his wife [Applicant 1] departed Australia [in] July 2018. [Applicant 2] said he did not have any claim to provide for this matter.

12. The Tribunal emailed the authorised representative on 24 October 2019, seeking clarification of the intentions of the second named applicant and in particular, whether he wished to withdraw his review application, would ask the Tribunal to make a decision on the material received or whether he intending to attend the hearing.  On 24 October 2014 the authorised representative responded by email and stated:

    I just finished phone conversation with [Applicant 2] about this matter. [Applicant 2] intend to withdraw the application, and he would not attend the hearing.

13. The Tribunal received confirmation from the authorised representative on 20 November 2019 that the second named applicant did not intend to attend the hearing and wished to withdraw his review application.

14. A valid application for review can be withdrawn at any time prior to the matter being finally determined. The Tribunal is satisfied that the authorised representative is a person duly authorised by the second named applicant to withdraw a review application. The Tribunal is satisfied  that the authorised representative is acting with the authority of the second named applicant.  The Tribunal is also satisfied on the information before it that the second named applicant has an actual intention for their application to be withdrawn.  On the basis of these findings the Tribunal has consented to the second named applicant’s request to withdrawal his review application. Accordingly, the Tribunal does not have jurisdiction to undertake a review of the Department’s decision to refuse the second named applicant’s application for a protection visa.

    DECISION

15. The Tribunal affirms the decision not to grant the first named applicant’s protection visa.

16. The Tribunal does not have jurisdiction to review the decision to not grant the second named applicant’s protection visa.

    David Barker
    Member