1716295 (Refugee)

[2018] AATA 514

1716295 (Refugee) [2018] AATA 514 (27 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1716295

COUNTRY OF REFERENCE:                  Taiwan

MEMBER:Ms Christine Long

DATE:27 February 2018

PLACE OF DECISION:  Sydney

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

Statement made on 27 February 2018 at 5:17pm

CATCHWORDS
Refugee – Protection Visa – Taiwan – Requirement for applicant to be in Australia – Applicant not in Australia

LEGISLATION
Migration Act 1958, ss 36(2), 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 [in] July 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 Taiwan applied for the visa [in] 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. Relevantly 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 who is in Australia. This means that a protection visa may only be granted if the applicant is in Australia.

5. The Department of Immigration’s movement records indicate that the applicant is not in Australia and that she left Australia [in] September 2017.

6. On 6 November 2017 the Tribunal wrote to the applicant advising that relevant records showed that she is not in Australia and could not be granted a protection visa. The Tribunal invited the applicant to comment on that information on or before 20 November 2017. No response was received to that invitation. Further the applicant did not respond to a hearing invitation to her inviting her to attend a hearing before the Tribunal on 27 February 2018 at 1pm; she did not appear at the time and date for the hearing specified in the hearing invitation to her.   

7. 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.

   Ms Christine Long
   Member