1813034 (Refugee)

[2021] AATA 5387

1813034 (Refugee) [2021] AATA 5387 (22 December 2021)

DECISION RECORD

DIVISION:  Migration & Refugee Division

CASE NUMBER:  1813034

MEMBER:  Michael Hawkins AM

DATE:  22 December 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 22 December 2021 at 6:35am

CATCHWORDS

REFGUGEE – protection visa – Taiwan – applicants left Australia and do not currently hold visas – no response to tribunal’s 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 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 16 April 2018 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act). The applicants, who claim to be citizens of Taiwan, applied for the visas on 4 October 2017.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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.

1. 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.

1. The Department of Home Affairs’ records which are available to the Tribunal indicate that the applicants are not in Australia. It appears that they left Australia on 22 June 2021 and do not hold current Australian visas. The Tribunal wrote to the applicants on 7 December 2021 advising that the Department’s records showed that they are not in Australia and do not have visas that enable them to return, and hence they could not be granted protection visas. The applicants were invited to give comments on or respond to the above information, in writing, by 21 December 2021. The letter was sent to the applicants by email at the email address provided in the application for review. That correspondence has not been returned from the applicants and the Tribunal received no response.

1. 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.

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

DECISION

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

Michael Hawkins AM Member