1815506 (Refugee)

[2020] AATA 1784

1815506 (Refugee) [2020] AATA 1784 (21 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1815506

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Gabrielle Cullen

DATE:21 May 2020

PLACE OF DECISION:  Sydney

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

Statement made on 21 May 2020 at 6:57pm

CATCHWORDS

REFUGEE – protection visa – Malaysia – applicant left Australia – no response from applicant to tribunal’s communication – 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 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 23 May 2018 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 Malaysia, applied for the visa on 27 March 2018.

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 applicant is not in Australia. It appears that he left Australia [in] January 2020. 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. The applicant was given until 14 May 2020 to comment or respond to the information. On 10 May 2020 the applicant’s representative responded and advised that he had forwarded the letter from the Tribunal to the applicant and had rung and SMS’d his mobile several times but had not received a response. He advised that the applicant has left Australia without informing them and that there is therefore no point continuing his review application. No response was received directly from the applicant to the Tribunal as at the date of this decision.

6. 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.

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

   DECISION

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

   Gabrielle Cullen
   Member