1820252 (Refugee)

[2018] AATA 5135

1820252 (Refugee) [2018] AATA 5135 (13 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1820252

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Jason Pennell

DATE:13 December 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 13 December 2018 at 3.01pm

CATCHWORDS
REFUGEE – protection visa – Sri Lanka – applicant out of Australia – 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 a decision made by a delegate of the Minister for Immigration and Border Protection on 7 March 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 Sri Lanka, applied for the visa on 28 March 2013.

2. On 27 June 2015 the Tribunal affirmed the delegate’s decision to refuse to grant the applicant a protection visa. On 26 June 2018 the Federal Court of Australia made orders that the Tribunals determination made on 27 June 2015 be quashed and that the matter be remitted to the Tribunal for hearing and determination according to law.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. 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.

5. 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.

6. Movement records indicate that the applicant is not in Australia. It appears that he left Australia on 14 November 2018. By a letter dated 26 November 2018 the Tribunal advised the applicant that according to its records he has not been in Australia since the 14 November 2018 and therefore could not be granted a protection visa. The Tribunal invited the applicant to comment on the information in writing by 10 December 2018. The Tribunal has not received any correspondence from the applicant in response to its letter dated 26 November 2018.

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 s.36(2) 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.

   Jason Pennell
   Member