1713869 (Refugee)

[2019] AATA 2949

1713869 (Refugee) [2019] AATA 2949 (1 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1713869

COUNTRY OF REFERENCE:                  China

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 1:40pm

CATCHWORDS

REFUGEE – Protection visa – China – 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. On 9 March 2016 the applicant applied for a XA-866 protection visa. He is a citizen of China and arrived in Australia [in] June 2012 on a [temporary] visa.

2. On 2 June 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 29 June 2017 the applicant lodged an application for review of this refusal decision with the Tribunal and attached a copy of the delegate decision to the review form.

4. On 19 December 2017 the Tribunal wrote to the applicant advising him that its records showed that the applicant is not in Australia and therefore could not be granted a protection visa. The letter invited the applicant to comment on or respond to the information in writing by 14 July 2018. The Tribunal 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) 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] July 2018 and 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