1712531 (Refugee)

[2018] AATA 4042

1712531 (Refugee) [2018] AATA 4042 (28 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1712531

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Jason Pennell

DATE:28 August 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 28 August 2018 at 1.35pm

CATCHWORDS

REFUGEE – protection visa – Malaysia – applicant left Australia – no jurisdiction

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 Immigration and Border Protection on 9 June 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 16 March 2017.

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 he left Australia [in] March 2018. By a letter dated 6 August 2018 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. The tribunal invited the applicant to respond to its letter by 20 August 2018.  The Tribunal has not received any response to its letter.

6. 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.

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

   DECISION

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

   Jason Pennell
   Member