1810080 (Refugee)

[2019] AATA 773

1810080 (Refugee) [2019] AATA 773 (2 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1810080

COUNTRY OF REFERENCE:                  Fiji

MEMBER:Meena Sripathy

DATE:2 January 2019

PLACE OF DECISION:  Sydney

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

Statement made on 02 January 2019 at 10:57am

CATCHWORDS

REFUGEE – Protection visa – Fiji – applicant left 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 a decision made by a delegate of the Minister for Immigration and Border Protection [In] July 2014 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 Fiji, applied for the visa [In] November 2013.

2. [In] October 2015 the Administrative Appeals Tribunal (‘first Tribunal’) affirmed the decision under review. The applicant sought judicial review of the decision.

3. [In] April 2017 the Federal Circuit Court of Australia dismissed the judicial review application.  The applicant appealed that Court’s decision to the Full Federal Court and [In] March 2018 the Full Federal Court allowed the appeal and set aside the decision of the Federal Circuit Court and the Tribunal and remitted the matter to the Administrative Appeals Tribunal to be determined according to law.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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.

6. 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.

7. Movement records indicate that the applicant is not in Australia. It appears that he left Australia [In] September 2018.  The Tribunal wrote to the applicant advising that its records showed that he is not in Australia and therefore could not be granted a protection visa and inviting the applicant to comment on the information. All correspondence sent to the applicant relating to the remitted application for review to the last postal address provided by him to the first Tribunal has been returned to sender. Officers from the Tribunal attempted to contact the applicant directly on the last mobile number and email address held for the applicant.  To date the Tribunal has had no contact from the applicant or his previous representative.

8. 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.

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

   DECISION

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

    Meena Sripathy
    Member