1705607 (Refugee)

[2021] AATA 174

1705607 (Refugee) [2021] AATA 174 (11 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1705607

COUNTRY OF REFERENCE:                   China

MEMBER:Penelope Hunter

DATE:11 January 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal:

·confirms the decision to dismiss the application in respect of [the first named applicant]: and

·affirms the decision not to grant [the second named applicant] a protection visa.

Statement made on 11 January 2021 at 10:04am

CATCHWORDS
REFUGEE – protection visa – China – no appearance by first applicant at hearing – application for review dismissed – no application for reinstatement – dismissal confirmed – second applicant left Australia – no response to tribunal’s invitation to comment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 426A, 426B

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 decisions made by a delegate of the Minister for Immigration on 23 February 2017 to refuse to grant the visa applicants protection visas under the Migration Act 1958 (the Act).

   First Named Applicant

2. On 16 December 2020  the Tribunal dismissed the application in respect of the first named applicant under s.426A(1A)(b) of the Act as the first named applicant did not appear before it to give evidence and present arguments at the time and date of the scheduled hearing.

3. The first named applicant was notified of the dismissal decision and given a copy of a written statement setting out the decision and the reasons for the decision, in accordance with s.426B(5). The first named applicant was advised that reinstatement of the application could be sought within 14 days of receiving the dismissal statement and that a failure to apply for reinstatement within the 14 day period would result in confirmation of the dismissal decision.

4. As the first named applicant did not apply for reinstatement of the application within the 14 days period, the Tribunal must confirm the decision to dismiss the application. In these circumstances, the decisions under review are taken to be affirmed.

   Second Named applicant

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 visa applicant is in Australia.

7. On 28 November 2020, the Tribunal received an email from the representative of the visa applicants advising that the second named applicant had returned to China. Departmental movement records indicate that the second named applicant is not in Australia. It appears that she left Australia [in] December 2018. The Tribunal wrote to the second named applicant 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 second named applicant was invited to comment or respond on or before 30 December 2020.

8. The Tribunal has not received any response from the second named applicant within the time stipulated or as at the date of this decision.

9. 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.

   DECISION

10. The Tribunal:

    ·    confirms the decision to dismiss the application of [the first named visa applicant]: and

    ·    affirms the decision not to grant to [the second named visa applicant] a protection visa.

    Penelope Hunter
    Member