1724470 (Refugee)

[2020] AATA 1127

1724470 (Refugee) [2020] AATA 1127 (11 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1724470

COUNTRY OF REFERENCE:                   China

MEMBER:Nathan Goetz

DATE:11 March 2020

PLACE OF DECISION:  Sydney

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

Statement made on 11 March 2020 at 4:28pm

CATCHWORDS

REFUGEE – Protection visa – China – applicant not in Australia – outside of migration zone –decision under review affirmed

LEGISLATION

Migration Act 1958, ss 36, 65, 424

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 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 China.

2. The applicant arrived in Australia [in] June 2017 as the holder of a visitor visa, and on 11 July 2017 applied for the protection visa.

3. The delegate refused to grant the protection visa on 15 September 2017, and on 9 October 2017 the applicant applied to the Tribunal for a review of the refusal decision.

   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. On 24 February 2020 the Tribunal wrote to the applicant utilising the procedure under s.424A of the Act. The Tribunal had information that would be a reason, or part of the reason for affirming the refusal decision. The letter advised the applicant that he was currently outside of Australia and had not returned. This meant that could not meet a criterion of the visa. The applicant was invited to comment on or respond to this information. The Tribunal never received a response from the applicant.

   FINDING AND REASON

7. For the following reason, the Tribunal has decided to affirm the delegate decision.

8. 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.

    Nathan Goetz
    Member