1802508 (Refugee)

[2020] AATA 2239

1802508 (Refugee) [2020] AATA 2239 (11 May 2020)

DECISION RECORD

DIVISION:  Migration & Refugee Division

CASE NUMBER:  1802508

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:  Alison Murphy

DATE:  11 May 2020

PLACE OF DECISION:  Melbourne

DECISION:  The Tribunal affirms the decision not to grant the

applicants protection visas.

Statement made on 11 May 2020 at 5:10pm

CATCHWORDS

REFUGEE – Protection visa – Malaysia – applicant not in Australia – decision under review affirmed

LEGISLATION

Migration Act 1958, 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 decisions made by a delegate of the Minister for Home Affairs on 30 January 2018 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 Malaysia, applied for the visas on 7 December 2017.

2. For the following reasons, the Tribunal has decided to affirm the decision under review.

3. 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. Movement records indicate that the applicants are not in Australia. It appears that the first named applicant left Australia [in] October 2019 and the other applicants left [in] September 2019. The Tribunal wrote to the applicants advising that its records showed that they are not in Australia and therefore could not be granted protection visas and inviting the applicants to comment on the information. The first applicant responded by agreeing that he was not currently in Australia. He stated that his reasons for leaving were that his wife was pregnant and couldn’t cope with the weather and he was unable to return due to COVID19 restrictions and his wife’s condition.

7. 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.

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

   DECISION

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

   Alison Murphy
   Member