1712757 (Refugee)

[2019] AATA 2516

1712757 (Refugee) [2019] AATA 2516 (28 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1712757

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Brendan Darcy

DATE:28 February 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 28 February 2019 at 2:40pm

CATCHWORDS

REFUGEE – Protection visa – Malaysia – applicant left Australia – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 36, 65, 431

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 6 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 17 February 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] May 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 and inviting the applicant to comment on the information. On 21 December 2018, the Tribunal wrote to the applicant inviting him to comment on this information and to do so by 4 January 2019. Right up to the time of making this decision, the applicant did not respond whatsoever.

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.

   Brendan Darcy
   Member