1720571 (Refugee)

[2018] AATA 4311

1720571 (Refugee) [2018] AATA 4311 (15 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1720571

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Shane Lucas

DATE:15 October 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 15 October 2018 at 11:37am

CATCHWORDS
REFUGEE – Protection visa – Malaysia – applicant out of 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 Home Affairs on 23 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 Malaysia, applied for the visa on 28 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) of the Act, 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. The applicant advised the Tribunal on 6 September 2018 that she intended to leave Australia on 8 September 2018, and that she wished to withdraw her application for review. Movement records indicate that the applicant left Australia on 7 September 2018.

6. The Tribunal wrote to the applicant on 6 September 2018 seeking confirmation of the applicant’s intention to withdraw her application for review and attaching the relevant Withdrawal of application for migration or refugee review – MR Division form. The applicant was asked to complete and return the form to the Tribunal within seven (7) days (i.e. by 13 September 2018). No response was received to this correspondence.

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 claims for grant of the visa.

   DECISION

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

   Shane Lucas
   Member