1723145 (Refugee)

[2020] AATA 820

1723145 (Refugee) [2020] AATA 820 (13 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1723145

COUNTRY OF REFERENCE:                   China

MEMBER:Mila Foster

DATE:13 March 2020

PLACE OF DECISION:  Sydney

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

Statement made on 13 March 2020 at 11:07am

CATCHWORDS
REFUGEE – protection visa – China – applicant left Australia and does not hold current visa – no response to tribunal’s communication – decision under review affirmed

LEGISLATION            
Migration Act 1958 (Cth), ss 36(2), 65(1)

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 31 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 China, applied for the visa on 6 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) 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. Department of Home Affairs records which are available to the Tribunal indicate that the applicant is not in Australia. It appears that he left Australia [in] August 2019 and does not hold a current Australian visa. The Tribunal wrote to the applicant advising that the Department’s records showed that he was not in Australia and did not have a visa that enabled him to return and hence he could not be granted a protection visa. The applicant was invited to comment on the information. No response to the invitation has been received.

6. 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.

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

   DECISION

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

   Mila Foster
   Member