1813423 (Refugee)

[2024] AATA 829

1813423 (Refugee) [2024] AATA 829 (15 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1813423

COUNTRY OF REFERENCE:                   Indonesia

MEMBER:Rupert Timms

DATE:15 February 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 15 February 2024 at 3:49pm

CATCHWORDS
REFUGEE – protection visa – Indonesia – applicant left Australia – no response to invitation to comment – not necessary to consider substantive case – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36(2), 65(1)

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 Home Affairs on 8 May 2018 to refuse to grant the applicant a protection visa under s65 of the Migration Act 1958 (Cth) (the Act). The applicant, who claims to be a citizen of Indonesia, applied for the visa on 31 March 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, s36(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. The Department of Home Affairs’ online Movement Records system indicates that the applicant is not in Australia, and that he left Australia [in] December 2023.  The Tribunal wrote to the applicant on 25 January 2024 advising that the Department’s records showed that he is not in Australia and that he therefore could not be granted a protection visa.  The Tribunal’s letter invited the applicant to comment on this information by 8 February 2024, and stated that if the Tribunal did not receive his comment (or else a request for an extension of time in which to respond) by 8 February 2024, the Tribunal might make a decision on his review application without taking any further action to obtain his views on this information. 

6. The applicant has not yet responded to the Tribunal’s above letter of 25 January 2024, and the Department’s Movement Records system indicate that the applicant is still currently outside Australia.

7. 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 s36(2) of the Act and cannot be granted a protection visa.

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

   DECISION

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

   Rupert Timms
   Member