1705682 (Refugee)

[2020] AATA 1895

1705682 (Refugee) [2020] AATA 1895 (23 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1705682

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Christine Cody

DATE:23 March 2020

PLACE OF DECISION:  Sydney

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

Statement made on 23 March 2020 at 1:17pm

CATCHWORDS

REFUGEE – Protection visa – Malaysia – applicant not in Australia – applicant does not hold a visa enabling him to return to Australia – decision under review affirmed

LEGISLATION

Migration Act 1958, 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. The Tribunal has before it an application for review form lodged 22 March 2017. It states that review is sought of a decision made by a delegate of the Minister for Immigration and Border Protection on 11 October 2016 notified on 20 March 2017 to refuse to grant the applicant a visa. The relevant Departmental reference provided was [file number deleted].

2. The type of visa refused was described in the application for review form as a WA-010, which is a bridging visa. The Departmental file [however] relates to the application for a protection visa made by the applicant, a Malaysian citizen, under s.65 of the Migration Act 1958 (the Act) on 11 October 2016, refused by the delegate on 20 March 2017 and notified on the same day. There was no reference to a refusal to grant a bridging visa in that file. It appeared to the Tribunal that the application for review was instead seeking a review of the application for a protection visa given:

   ·     The application for review form makes a reference to the date of notification being 20 March 2017, and this is the date that the refusal to grant a protection visa was notified to the applicant;

   ·     The application for review form makes a reference to the date of the refusal decision as 11 October 2016; this however is the date recorded I n the delegate’s decision record refusing to grant a protection visa as the date of lodgement of the protection visa application;

   ·     The Departmental file reference relates to the refusal of a protection visa application, not a bridging visa application;

   ·     The Tribunal is unaware of any refusal of a bridging visa and the applicant did not provide any evidence to support the existence of such a refusal;

   ·     The Tribunal issued to the applicant a letter acknowledging receipt of his application for review form, referring to his application to review the decision to refuse to grant him a protection visa. The applicant did not object to this description.  

3. Further, after lodging the application currently before the Tribunal, on 7 August 2018 the applicant provided further documents to the Tribunal which was initially treated by the Tribunal as a new application for review (1822862) but after further investigation and confirmed by the applicant this was not actually a further application for review but was just meant to be a change of contact detail for the current case. The documents submitted included a copy of the delegate’s decision record refusing to grant the protection visa referred to above and a copy of the grant (and notification of that grant) of the applicant’s bridging visa dated 12 October 2016 which occurred upon the application for a protection visa lodged 11 October 2016. Correspondence between the Tribunal and the applicant in the 1822862 casefile included a question to the applicant as to whether he was attempting to lodge a second application for review of the decision to refuse him a protection visa and his response was that he did not seek to do so; he only wished to have one appeal ongoing, which was the application for review of the decision to refuse his protection visa application per his application for review lodged in March 2017 with the Tribunal.  

4. The Tribunal has carefully considered the application for review form and the documents before it. The Tribunal finds that the application for review is seeking a review of the decision on 20 March 2017 to refuse to grant the applicant a protection visa, and that the reference to seeking a review of a bridging visa was an error.   

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

6. 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.

7. 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.

8. On 24 February 2020 the Tribunal wrote to the applicant at his nominated address for correspondence (an email address) advising that Departmental records showed that he is not in Australia (and he does not hold a visa enabling him to return to Australia), and therefore could not be granted a protection visa and inviting the applicant to comment on the information. The applicant did not provide any response.

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.

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

    DECISION

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

    Christine Cody
    Member