1701627 (Refugee)

[2018] AATA 4025

1701627 (Refugee) [2018] AATA 4025 (13 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1701627

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Brendan Darcy

DATE:13 August 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 13 August 2018 at 9:05am

CATCHWORDS
REFUGEE – Protection visa – Sri Lanka – applicant left Australia – no jurisdiction

LEGISLATION

Migration Act 1958, ss 36, 65, 431

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 on 25 January 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act). The applicant, who claims to be a citizen of Sri Lanka, applied for the visa on 11 April 2016.

2. It is noted the applicant arrived in Australia as an unauthorised maritime arrival in July 2012.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. 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.

5. 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.

6. Movement records indicate that the applicant is not in Australia. It appears that he left Australia [in] June 2018. The Tribunal wrote to the applicant advising that its records showed that he is not in Australia and therefore could not be granted a protection visa and inviting the applicant to comment on the information, and to do so by 10 August 2018.

7. Neither the applicant nor the applicant’s representative responded to this invitation to comment at all, right up until the time of making this decision. 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.

8. 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.

   Brendan Darcy
   Member