1717169 (Refugee)

[2019] AATA 516

1717169 (Refugee) [2019] AATA 516 (1 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1717169

COUNTRY OF REFERENCE:                  Taiwan

MEMBER:Jason Pennell

DATE:1 March 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 1 March 2019 at 12.08pm

CATCHWORDS
REFUGEE – protection visa – Taiwan – 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. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 14 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 China, applied for the visa on 6 December 2016.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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.

2. 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.

3. Movement records indicate that the applicant is not in Australia. It appears that he left Australia [in] August 2018. By a letter dated 20 December 2018 the Tribunal advised the applicant that its records showed that he been out of Australia from 4 August 2018 and therefore could not be granted a protection visa. The Tribunal invited the applicant to make any comment or respond to the letter by 3 January 2019. The Tribunal has not received any correspondence in response to its letter.  

4. 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.

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

DECISION

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

Jason Pennell

Member