1712800 (Refugee)

[2019] AATA 1397

1712800 (Refugee) [2019] AATA 1397 (1 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1712800

COUNTRY OF REFERENCE:                  Tonga

MEMBER:Nathan Goetz

DATE:1 March 2019

PLACE OF DECISION:  Sydney

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

Statement made on 01 March 2019 at 12:55pm

CATCHWORDS
REFUGEE – protection visa – Tonga – applicant departed 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. On 17 November 2016 the applicant lodged an XA-866 protection visa application. The applicant is a citizen of Tonga and arrived in Australia [in] May 2016 on a multiple entry [temporary] visa.

2. On 22 May 2017 a delegate of the Minister for Immigration and Border Protection refused to grant the applicant the protection visa under s.65 of the Migration Act 1958 (the Act).

3. On 16 June 2017 the applicant lodged an application for review of the refusal decision with the Tribunal and attached a copy of the delegate decision with the review form.

4. On 19 December 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 letter invited the applicant to comment on or respond to that information in writing by 2 January 2019. The Tribunal has never received a response from the applicant.

5. For the following reasons, the Tribunal has decided to affirm the decision under review.

6. 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. 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.

7. Movement records indicate that the applicant is not in Australia. It appears that he left Australia [in] August 2018 and has never returned. 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 case for the grant of the visa.

   DECISION

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

   Nathan Goetz
   Member