1704153 (Refugee)

[2019] AATA 2948

1704153 (Refugee) [2019] AATA 2948 (1 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1704153

COUNTRY OF REFERENCE:                  China

MEMBER:Mila Foster

DATE:1 March 2019

PLACE OF DECISION:  Sydney

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

Statement made on 01 March 2019 at 10:19am

CATCHWORDS

REFUGEE – Protection visa – China – applicant left Australia – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 36, 65, 438

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 20 February 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 China, applied for the visa on 7 November 2016.

2. For the following reasons, I have decided to affirm the decision under review.

   CONSIDERATION OF CLAIMS AND EVIDENCE

3. 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.

4. 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.

5. Movement records indicate that the applicant is not in Australia. It appears that he left Australia [in] September 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. No response has been received to that invitation nor has there been any further contact from the applicant.

6. I am 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.

8. I note that the Department of Home Affairs file[1] relating to the applicant’s protection visa application contains a purported s.438 non-disclosure certificate. However the certificate is invalid as the reason given in the certificate as being contrary to the public interest does not provide a sufficient basis for public interest immunity. Further the information which is the subject of the certificate is neither material nor relevant to whether the applicant is in Australia.

   [1] [File number].

   DECISION

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

   Mila Foster
   Member