1732236 (Refugee)

[2022] AATA 3528

1732236 (Refugee) [2022] AATA 3528 (17 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1732236

COUNTRY OF REFERENCE:                   China

MEMBER:Christine Cody

DATE:17 August 2022

PLACE OF DECISION:  Sydney

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

Statement made on 17 August 2022 at 1:50pm

CATCHWORDS

REFUGEE – protection visa – China – applicant departed Australia – no response received for invitation to comment – 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 dependants.

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 27 November 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant, who claims to be a citizen of China, applied for the visa on 30 June 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. On 14 July 2022 the Tribunal wrote to the applicant advising that Departmental movement records showed that she is not in Australia, and she does not hold a visa enabling her to return to Australia, and if this information was accepted as true, she could not be granted a protection visa. The applicant was invited to comment on and/or respond to the information, or request an extension of time to do so, before 28 July 2022. The Tribunal did not receive any communication from the applicant.

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.

   Christine Cody
   Member