1716585 (Refugee)

[2023] AATA 2410

1716585 (Refugee) [2023] AATA 2410 (1 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Stanley Chan (MARN: 0430097)

CASE NUMBER:  1716585

COUNTRY OF REFERENCE:                   Taiwan

MEMBER:Lilly Mojsin

DATE:1 May 2023

PLACE OF DECISION:  Sydney

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

Statement made on 1 May 2023 at 4:09pm

CATCHWORDS
REFUGEE – protection visa – Taiwan – applicant departed Australia – not necessary to consider substantive case – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36(2), 65(1), 425(2)(b), 441G

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 dependants.

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 11 July 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant, who claims to be a citizen of Taiwan, applied for the visa on 31 March 2017.

2. The applicant who claims to be a citizen of Taiwan, applied for the visa on 8 December 2016. The delegate refused to grant the visa on the basis that the delegate was not satisfied the applicant would suffer serious or significant harm on return to Taiwan.

3. The applicant was represented in relation to the review.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. 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.

5. By letter dated 11 April 2023 and sent to the applicant in accordance with section 441G of the Migration Act 1958, the applicant was notified that the Tribunal had considered the material before it but the Tribunal was unable to make a favourable decision on this information alone. The applicant was invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review, at a hearing on 1 May 2023 at 9.00am. The applicant was advised that, if the applicant failed to attend the scheduled hearing and an adjournment was not granted, the Tribunal might make a decision on the review without taking any further action to allow or enable the applicant to appear before the Tribunal.

6. By response to a hearing invitation, dated 21 April 2023, the applicant advised she would not be attending the hearing. By email of the same date, the applicant’s duly authorised representative advised the Tribunal that the applicant had departed Australia.

7. In accordance with s. 425(2)(b) the Tribunal proceeds to decide this application on the material before the Tribunal.

8. 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.

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

   DECISION

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

    Lilly Mojsin
    Member