1706498 (Refugee)

[2019] AATA 1649

1706498 (Refugee) [2019] AATA 1649 (21 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1706498

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Shane Lucas

DATE:21 February 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 21 February 2019 at 11:46am

CATCHWORDS

REFUGEE – protection visa – Malaysia – applicant not in 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 Home Affairs on 24 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 on 20 December 2016.

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) of the Act, a visa may be granted only if the decision maker is satisfied that the prescribed criteria for the visa have been satisfied.

4. 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.

5. Department of Home Affairs records indicate that the applicant is not in Australia. It appears that he left Australia [in] June 2018.

6. The Tribunal wrote to the applicant on 13 December 2018 advising that its records showed that he is not in Australia and therefore could not be granted a protection visa. The applicant was invited to comment on the information within fourteen (14) days (i.e. by 27 December 2018). No response was received to this correspondence within the specified time.

7. 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.

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

   DECISION

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

   Shane Lucas
   Member