1703844 (Refugee)

[2020] AATA 6025

1703844 (Refugee) [2020] AATA 6025 (31 August 2020)

CORRIGENDUM

DIVISION:  Migration & Refugee Division

CASE NUMBER:  1703844

COUNTRY OF REFERENCE:                   India

MEMBER:  Rodger Shanahan

DATE OF DECISION:  31 August 2020

DATE CORRIGENDUM SIGNED:            9 December 2020

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

1.    Front page of decision record. Remove [Name 1] and replace with [Name 2].

2.    Front page of decision record. Remove 1707481 and replace with 1703844.

3.    Front page of decision record. Remove [File Number 1] and replace with       [File Number 2].

4.    Page 2 of decision record. Remove 24 March 2017 and replace with 16 February 2017.

5.    Page 2 of decision record. Remove 14 July 2016 and replace with 19 August 2016.

Rodger Shanahan Member

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  [Name 1]

CASE NUMBER:  1707481

DIBP REFERENCE(S):  [File Number 1]

COUNTRY OF REFERENCE:                   India

MEMBER:  Rodger Shanahan

DATE:  31 August 2020

PLACE OF DECISION:  Sydney

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

Statement made on 31 August 2020 at 9:17am

CATCHWORDS

REFUGEE – protection visa – India – applicant left Australia – 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 a decision made by a delegate of the Minister for Immigration and Border Protection on 24 March 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 India, applied for the visa on 14 July 2016.

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

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.

1. 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.

1. Movement records indicate that the applicant is not in Australia. It appears that he left Australia [in] June 2020. The Tribunal’s records did not indicate this at the time a hearing invitation was sent to him on 26 August 2020, but the applicant responded by email the same day stating that: ‘I have already left the country. I will not be able to attend the interview. So kindly please cancel my interview date.’

1. 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.

1. 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.

Rodger Shanahan Member