1706672 (Refugee)

[2020] AATA 1268

1706672 (Refugee) [2020] AATA 1268 (1 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1706672

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Mary Urquhart

DATE:1 May 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 01 May 2020 at 12:48pm

CATCHWORDS

REFUGEE – protection visa – Malaysia – applicant left Australia – in third country with Australian permanent resident husband for his job there – own passport expired – no visa to return to Australia – application under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 36(2), 65(1)

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 dependants.

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 8 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 28 October 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) 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. Movement records indicate that the applicant is not in Australia. It appears that she left Australia [in] July 2019. The Tribunal wrote to the 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.

6. On 2 March 2020 the applicant replied. The Tribunal has carefully considered the response.

7. The applicant agreed she was out of Australia. She indicated that she had travelled to  [Country] with her husband (an Australian Permanent resident whom she married in Australia) who took up a job opportunity there. The applicant also explained that her Malaysian passport expired and that the Malaysian Consul Office in Melbourne asked her to clarify her status. However she said she did not have ID documentation. She explained inter alia that her wait in Australia was long and difficult and a struggle. She said that she would like a Skype Video interview to pursue her appeal.

8. The Tribunal notes significantly that the applicant is does not hold a visa that enables her to return.

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.

    Mary Urquhart
    Member