1714436 (Refugee)

[2021] AATA 3370

1714436 (Refugee) [2021] AATA 3370 (6 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1714436

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Nathan Goetz

DATE:6 July 2021

PLACE OF DECISION:  Sydney

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

Statement made on 06 July 2021 at 10:07am

CATCHWORDS
REFUGEE – protection visa – Malaysia – applicant departed Australia – obligation to invite the applicant to a Tribunal hearing – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 424A, 425, 436A
Migration Regulations 1994 (Cth), r 4.35D

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 (Cth) (the Act).

   IDENTITY, MIGRATION HISTORY AND CHRONOLOGY

2. The applicant identifies as a citizen of Malaysia and arrived in Australia holding an electronic travel authority visa [in] December 2016. On 10 January 2017 the applicant applied for the protection visa. On 15 June 2017 the delegate refused to grant the visa.

3. The applicant applied to the Tribunal on 5 July 2017 for a review of the refusal decision. [In] March 2021 the applicant departed Australia.

4. On 3 May 2021 the Tribunal wrote to the applicant under s.424A of the Act and raised the fact that the applicant was not in Australia as a reason or part of the reason for affirming the decision under review. This information was relevant because the protection visa could only be granted if the applicant was in Australia. The fact that the applicant was not in Australia meant that the applicant would not meet the requirements of the Act. The invitation invited the applicant to comment on or respond to the information in writing.

5. The applicant responded to the invitation on 7 May 2021. The applicant wrote:

   I need back to malaysia cuz i have emergency cases...actually i dont want go back but my mom was sick and my step father just pass away...if you can check i do apply for bringing b many time but didnt get it..

6. As the applicant had responded to the s.424A letter, the Tribunal still had the obligation to invite the applicant to appear at a Tribunal hearing, notwithstanding that the applicant could not be granted the protection visa: s.425(1).

7. On 17 June 2021 the Tribunal wrote to the applicant and indicated that it could hear his review application on 23 June 2021. This period is less than the prescribed notice period for a hearing invitation, but this period can be reduced: reg.4.35D(3). The applicant did not respond to this request to hold the Tribunal hearing on 23 June 2021.

8. Accordingly, the Tribunal wrote to the applicant and invited the applicant to appear at a Tribunal hearing with the prescribed statutory notice period. The hearing was scheduled for 6 July 2021 at 10:00am AEST and was allocated 15 minutes hearing time, with the ability to extend the hearing time further. As the applicant was offshore, the Tribunal determined that a telephone hearing was appropriate. The invitation noted the telephone number that the applicant had provided for the review application. The invitation requested the applicant advise if this was not the correct telephone number or if there was another number that the Tribunal should call. The hearing invitation also included a ‘Response to hearing invitation’ form that the applicant was requested to complete and returned to the Tribunal. The Tribunal received no response from the applicant to the hearing invitation form.

9. On 6 July 2021 at 10:00am the Tribunal telephoned the applicant on the number provided. A person answered the telephone number and indicated that he was not the applicant. Therefore, the applicant did not appear at the Tribunal hearing and the Tribunal is empowered to make a decision on the review application without taking any further steps to allow or enable the applicant to appear: s.436A(1A)(a).

   FINDINGS AND REASONS

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

11. 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.

12. Movement records demonstrate that the applicant is not in Australia, having departed on 12 March 2021. The applicant confirmed in response to the s.424A letter that the applicant was not in Australia and advised of the reasons why the applicant left Australia.

13. 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.

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

    DECISION

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

    Nathan Goetz
    Member