1705458 (Refugee)

[2019] AATA 4982

1705458 (Refugee) [2019] AATA 4982 (21 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1705458

COUNTRY OF REFERENCE:                  Korea, Dem Peoples Rep of

MEMBER:Alison Murphy

DATE:21 June 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 21 June 2019 at 9:48am

CATCHWORDS
REFUGEE – protection visa – Democratic People’s Republic of Korea – applicant departed 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 1 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 the Democratic Peoples Republic of Korea, applied for the visa on 11 December 2015. The applicant was represented in the review by her registered migration agent.

2. For the following reasons, the Tribunal has 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. 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.

4. Movement records indicate that the applicant is not in Australia. It appears that she left Australia [in] February 2019. The Tribunal wrote to the applicant by email advising that its records showed that she is not in Australia and therefore could not be granted a protection visa and inviting the applicant to comment on the information. The Tribunal’s records show the same email address was provided to the Tribunal for both the applicant and her representative.

5. On 3 June 2019 the Tribunal’s letter was returned to sender. A Tribunal officer contacted the applicant’s representative by phone who advised that she would lodge a change of contact details form with the Tribunal. The Tribunal file indicates that form was never received by the Tribunal.

6. On 11 June 2019 the Tribunal again wrote to the applicant at her authorised representative’s mailing address advising that its records showed that she is not in Australia and therefore could not be granted a protection visa and inviting the applicant to comment on the information. On 20 June 2019 the Tribunal’s second letter was returned to sender. A Tribunal officer unsuccessfully attempted to contact the applicant’s representative on the landline and mobile phone numbers provided to the Tribunal. I am satisfied from the circumstances set out above that the Tribunal has exhausted all available avenues to contact the applicant.

7. Given the Department’s movement records indicate she departed Australia [in] February 2019 and has not returned, I am satisfied 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. Having reached this conclusion, it is not necessary to consider the applicant's substantive case for the grant of the visa.

   DECISION

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

   Alison Murphy
   Member