1731050 (Refugee)

[2020] AATA 1586

1731050 (Refugee) [2020] AATA 1586 (6 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1731050

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Mary Urquhart

DATE:6 May 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 06 May 2020 at 12:37pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – applicant departed Australia – 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 30 November 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 Malaysia applied for the visa on 16 October 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. It appears that she left Australia [in] December 2019. The Tribunal wrote to the applicant on 21 February 2020 advising that its records showed that she is not in Australia and therefore could not be granted a protection visa and inviting the applicant to comment on the information and to do so by 3 March 2020.

6. On 6 March 2020 the Tribunal received a response from the applicant. The applicant stated  “I am already in Malaysia, what should I do from here”.

7. The Tribunal notes the response confirms that the applicant is no longer in Australia. The applicant did not comment on their being without a valid visa to return merely inquiring what should they do.

8. When the Tribunal wrote to the applicant it them on notice that a visa could not be granted if the applicant was outside Australia and without a valid visa to return.

9. The Tribunal is satisfied from the circumstances set out above that the applicant is not in Australia and does not have a valid visa to return to Australia. Therefore, the applicant does not satisfy the requirements of s.36(2) and cannot be granted a protection visa.

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

    DECISION

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

    Mary Urquhart
    Member