1722270 (Refugee)

[2020] AATA 2062

1722270 (Refugee) [2020] AATA 2062 (2 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1722270

COUNTRY OF REFERENCE:                   China

MEMBER:Denise Connolly

DATE:2 June 2020

PLACE OF DECISION:  Sydney

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

Statement made on 2 June 2020 at 2:09pm

CATCHWORDS

REFUGEE – protection visa – China – applicant left Australia – mother’s illness and death –no visa allowing return – 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 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 1 September 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 9 July 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) 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. The records confirm he left Australia [in] October 2019. The Tribunal wrote to the applicant advising that its records showed he is not in Australia, does not hold a visa allowing his return and therefore could not be granted a protection visa. He was invited to comment on the information. He responded on 27 February 2020, advising that he returned to China because his mother was ill. She died and he was going to return to Australia but he was caught by the pandemic. He did not know his visa did not allow his return to Australia. He is a Falun Gong trainer and it is dangerous for him in China.

6. The applicant appeared before the Tribunal on 2 June 2020 to give evidence and present arguments. The hearing was conducted, with the assistance of an interpreter, in the English and Mandarin languages.

7. The Tribunal explained that it had taken into account the applicant’s submissions but that s.36(2) required the applicant to be in Australia to be granted a protection visa. It explained, in circumstances where he is outside Australia and does not hold a visa allowing his return, it cannot make a favourable decision and it would have to affirm the Department’s decision. The applicant confirmed that he now understands the effect of s.36(2) but asked if he could return to Australia on a different visa, such as a tourist visa. The Tribunal told the applicant that it could not give him migration advice.

8. The Tribunal has taken into account the applicant’s explanation for why he departed Australia. However it does not have any discretion to waive the requirement of s.36(2) of the Act. 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.

    Denise Connolly
    Member