1728106 (Refugee)

[2020] AATA 1126

1728106 (Refugee) [2020] AATA 1126 (27 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1728106

COUNTRY OF REFERENCE:                   China

MEMBER:David Barker

DATE:27 March 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 27 March 2020 at 1:37pm

CATCHWORDS
REFUGEE – protection visa – China – applicants left Australia – 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 decisions made by a delegate of the Minister for Immigration and Border Protection on 31 October 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act). The applicants, who claim to be citizens of China, applied for the visas on 4 August 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. The Department of Home Affairs records, which are available to the Tribunal, indicate that the applicants are not in Australia. It appears that they left Australia [in] July 2019 and does not hold current Australian visas. The Tribunal wrote to the applicants advising that the Department’s records showed that they are not in Australia and did not have visas that enabled them to return, and therefore could not be granted protection visas.  The applicants were invited to comment on the information. No response was received in response to the invitation.

6. The Tribunal is satisfied from the circumstances set out above that the applicants are not in Australia. Therefore, the applicants do not satisfy the requirements of s.36(2) and cannot be granted protection visas.

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

   DECISION

8. The Tribunal affirms the decision not to grant the applicants protection visas.

   David Barker
   Member