1706221 (Refugee) - [2018] AATA 212

1706221 (Refugee) [2018] AATA 212 (22 January 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1706221
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Justin Meyer
DATE:22 January 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 22 January 2018 at 7:34am

CATCHWORDS
Refugee – Protection Visa – Malaysia – Requirement for applicant to be in Australia – Applicant not in Australia
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

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] 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 Malaysia, applied for the visa [in] February 2017.
For the following reasons, the Tribunal has decided to affirm the decision under review.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
The Department of Immigration’s movement records indicate that the applicant is not in Australia. It appears that he left Australia [in] July 2017. 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 was received.
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.
Having reached this conclusion, it is not necessary to consider the applicant's substantive case for the grant of the visa.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Justin Meyer
Member

Details

AGLC: 1706221 (Refugee) [2018] AATA 212
Case: [2018] AATA 212
Decision Date: 22 January 2018

CaseChat Overview and Summary

This matter concerned an application for a protection visa by a non-citizen who was not physically present in Australia. The applicant sought review of the decision not to grant the visa before the Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the criterion for a protection visa that requires the applicant to be a non-citizen in Australia, as stipulated by section 36(2) of the *Migration Act 1958* (Cth).

The Tribunal considered evidence from the Department of Immigration's movement records, which indicated the applicant had departed Australia in July 2017. The Tribunal notified the applicant of this information and invited comment, but no response was received. Based on this evidence, the Tribunal was satisfied that the applicant was not in Australia, and therefore did not satisfy the criterion under section 36(2). Consequently, the Tribunal found it unnecessary to consider the substantive claims for the grant of the protection visa.

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

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has decided to affirm the decision under review.CONSIDERATION OF CLAIMS AND EVIDENCE 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. The Department of Immigration’s movement records indicate that the applicant is not in Australia. It appears that he left Australia [in] July 2017. 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 was received. 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. Having reached this conclusion, it is not necessary to consider the applicant's substantive case for the grant of the visa.DECISION The Tribunal affirms the decision not to grant the applicant a protection visa.Justin MeyerMember

Decision

Reasons for decision

Having reached this conclusion, it is not necessary to consider the applicant's substantive case for the grant of the visa.DECISION The Tribunal affirms the decision not to grant the applicant a protection visa.Justin MeyerMember

Ratio Decidendi

Legal Principle Established

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