1718606 (Refugee)

[2017] AATA 2758

1718606 (Refugee) [2017] AATA 2758 (14 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1718606

COUNTRY OF REFERENCE:                  China

MEMBER:Nathan Goetz

DATE:14 December 2017

PLACE OF DECISION:  Sydney

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

Statement made on 14 December 2017 at 2:40pm

CATCHWORDS

Refugee – Protection visa – China – Applicant outside migration zone

LEGISLATION

Migration Act 1958, 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 [in] August 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act). The applicant is a citizen of the People’s Republic of China and applied for the visa [in] January 2017.

2. The applicant applied to the Tribunal on 20 August 2017 for a review of the decision.

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

5. 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.

6. The Department of Immigration’s movement records indicate that the applicant is not in Australia. It appears that she left Australia [in] September 2017. The Tribunal wrote to the applicant on 6 November 2017 advising that its records showed that she is not in Australia and therefore could not be granted a protection visa and inviting the applicant to comment on the information by 20 November 2017. The Tribunal has never received a response from the applicant.

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.

   Nathan Goetz
   Member