1730375 (Refugee)

[2019] AATA 3336

1730375 (Refugee) [2019] AATA 3336 (1 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1730375

COUNTRY OF REFERENCE:                   China

MEMBER:Mireya Hyland

DATE:1 March 2019

PLACE OF DECISION:  Sydney

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

Statement made on 01 March 2019 at 11:39am

CATCHWORDS
REFUGEE – protection visa – China – applicant no longer in Australia – no response to communication – 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 Immigration and Border Protection on 16 November 2017 to refuse to grant [the applicant] a protection visa under s.65 of the Migration Act 1958 (the Act). [The applicant] applied for the visa on 16 July 2017. He lodged his review application with the Tribunal on 3 December 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 states 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. He departed Australia [in] October 2018 and has not returned. On 20 December 2018, the Tribunal wrote to [the applicant] inviting him to comment on the fact that the Department of Home Affairs’ records show that he is not in Australia and, therefore, cannot be granted a protection visa. At the date of this decision the Tribunal has not received any response to its invitation from [the applicant].

6. The Tribunal is satisfied on the evidence above that [the applicant] is not in Australia. Therefore, [the applicant] does not satisfy s.36(2) of the Act 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.

   Mireya Hyland
   Member