1720473 (Refugee)

[2020] AATA 1822

1720473 (Refugee) [2020] AATA 1822 (12 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1720473

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Mara Moustafine

DATE:12 March 2020

PLACE OF DECISION:  Sydney

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

Statement made on 12 March 2020 at 4:53pm

CATCHWORDS

REFUGEE – protection visa – Sri Lanka – 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 16 August 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 Sri Lanka, applied for the visa on 29 September 2015.

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. 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. Movement records indicate that the applicant is not in Australia. It appears that he left Australia [in] November 2018. On 24 February 2020 the Tribunal wrote to the applicant through his migration agent advising that its records showed that the applicant is not in Australia and therefore could not be granted a protection visa and inviting the applicant to comment on the information.

6. On 10 March 2020, the applicant’s migration agent responded that they had been unable to obtain instructions from the applicant and that the Department of Home Affairs had confirmed the applicant left Australia while the holder of a BVE

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.

   Mara Moustafine
   Member