1704370 (Refugee)

[2020] AATA 3774

1704370 (Refugee) [2020] AATA 3774 (11 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1704370

COUNTRY OF REFERENCE:                   China

MEMBER:Nathan Goetz

DATE:11 August 2020

PLACE OF DECISION:  Sydney

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

Statement made on 11 August 2020 at 10:28am

CATCHWORDS

REFUGEE – Protection visa – China – applicant not in Australia – outside of migration zone – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 36, 65, 424A

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 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant claims to be a citizen of China. The applicant arrived in Australia [in] February 2016 and applied for the protection visa on 9 September 2016. On 15 February 2017 the delegate refused to grant the protection visa.

3. The applicant applied to the Tribunal on 10 March 2017 for a review of the refusal decision.

4. For the following reason, 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. On 17 July 2020 the Tribunal wrote to the applicant under s.424A of the Act because the Tribunal had information that would be a reason or part of the reason for affirming the decision under review. The information was that the applicant was not in Australia. The consequence of this information meant the applicant could not be granted the protection visa. The applicant was invited to comment on or respond to the information in writing by 31 July 2020. The Tribunal never received a response from the applicant.

8. The Tribunal is satisfied from the circumstances set out above that the applicant is not in Australia. The Tribunal is satisfied that the applicant departed Australia [in] March 2020 and has not returned. Therefore, the applicant does not satisfy the requirements of s.36(2) and cannot be granted a protection visa.

9. Having reached this conclusion, it is not necessary to consider the applicant's substantive case for the grant of the visa.

   DECISION

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

    Nathan Goetz
    Member