1803121 (Refugee)

[2018] AATA 4412

1803121 (Refugee) [2018] AATA 4412 (17 September 2018)

CORRIGENDUM

DIVISION:Migration & Refugee Division

CASE NUMBER:  1803121

COUNTRY OF REFERENCE:                  Indonesia

MEMBER:Mara Moustafine

DATE OF DECISION:  17 September 2018

DATE CORRIGENDUM

SIGNED:21 November 2018

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

The sentence in paragraph 5, which reads:

·It appears that they left Australia on 23 September 2018.

Is replaced with

• It appears that they left Australia on 23 March 2018.

Mara Moustafine
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1803121

COUNTRY OF REFERENCE:                  Indonesia

MEMBER:Mara Moustafine

DATE:17 September 2018

PLACE OF DECISION:  Sydney

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

Statement made on 17 September 2018 at 7:25am

CATCHWORDS
REFUGEE – Protection visa – Indonesia – applicant left Australia – no jurisdiction

LEGISLATION

Migration Act 1958, ss 36, 65, 431

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 12 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 Indonesia, applied for the visas on 26 September 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 applicants are not in Australia. It appears that they left Australia on 23 September 2018. The Tribunal wrote to the applicants on 7 August 2018 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 by 21 August 2018. They were advised that, if the Tribunal did not receive their comments or response within the period allowed, the Tribunal may make a decision on the review without taking any further action to obtain their views on the information.

6. No response was received from the applicants within the period allowed.

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.

   Mara Moustafine
   Member