1708278 (Refugee)

[2019] AATA 6582

1708278 (Refugee) [2019] AATA 6582 (3 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1708278

COUNTRY OF REFERENCE:                   China

MEMBER:Nathan Goetz

DATE:3 December 2019

PLACE OF DECISION:  Sydney

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

Statement made on 03 December 2019 at 10:23am

CATCHWORDS

REFUGEE – protection visa – China – applicant left Australia – no response to request for information – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 36, 65, 424, 425

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 Immigration and Border Protection to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant claims to be a citizen of China. He arrived in Australia [in] December 2016 on a [temporary] visa that had been granted on 29 November 2016.

3. On 20 February 2017 the applicant applied for a protection visa. The applicant was invited to participate in an interview with the delegate on 24 March 2017 but failed to attend. The delegate refused to grant the protection visa application that same day.

4. On 17 April 2017 the applicant applied to the Tribunal for a review of the refusal decision and attached a copy of the delegate decision to the review form.

   CRITERIA FOR A PROTECTION VISA

5. The Act provides that a visa may be granted only if the decision maker is satisfied that the prescribed criteria for the visa have been satisfied: s.65(1).

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 applicant is in Australia.

   CONSIDERATION OF THE EVIDENCE

7. The Tribunal has considered department movement records which track the applicant’s movements in and out of Australia. These records indicate that the applicant is not in Australia. The records read that the applicant left Australia [in] July 2019 and has not returned.  

8. On 18 November 2019 utilising s.424A of the Act, the Tribunal wrote to the applicant and raised this information with him as it would be the reason or part of the reason for affirming the decision under review. The Tribunal sent this letter to the applicant via the email address he provided for his authorised recipient. This email address was provided in the applicant’s review form that he lodged with the Tribunal.

9. The letter stated that the information was relevant because if the information was true, the applicant could not be granted a protection visa. The letter invited the applicant to comment on or respond to this information in writing by 2 December 2019, and also advised him that if he was unable to provide his comments or response by that date, he could ask the Tribunal for an extension of time in which to provide his comments or response but would need to do so by 2 December 2019.

10. The Tribunal never received a response from the applicant addressing the information, or requesting an extension of time.

11. The Act provides that the Tribunal must invite an applicant to appear before the Tribunal: s.425(1). However this requirement does not apply in certain circumstances: s.425(2)(a), (b) and (c). If any of those subsections apply, the applicant is not entitled to appear before the Tribunal: s.425(3).

12. So far as relevant to this case, s.425(2)(c) provides that the requirement to invite the applicant to appear before the Tribunal does not apply if s.424C(1) or (2) applies to the applicant.

13. In the circumstances of this case, s.424C(2) applies to the applicant because the applicant was invited under s.424A to comment on or respond to information, and the applicant did not give the comments or response before the time for doing so has passed.

14. Consequently, there is no entitlement for the applicant to appear before the Tribunal, and the Tribunal has exercised its power to make a decision on the review without taking any further action to obtain the applicant's views on the information.

    FINDINGS AND REASONS

15. Having considered the material, the Tribunal is satisfied from the circumstances set out above that the applicant is not in Australia.

16. 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

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

    Nathan Goetz
    Member