1822291 (Refugee)

[2024] AATA 1694

1822291 (Refugee) [2024] AATA 1694 (10 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1822291

COUNTRY OF REFERENCE:                   China

MEMBER:Rebecca Mikhail

DATE:10 April 2024

PLACE OF DECISION:  Sydney

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

Statement made on 10 April 2024 at 4:36pm

CATCHWORDS
REFUGEE – protection visa – China – applicant left Australia – no response to invitation to comment – 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 5 July 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant, who claims to be a citizen of China, applied for the visa on 21 October 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, 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] November 2023.

6. On 18 March 2024 the Tribunal wrote to the applicant inviting him to comment on or respond to information which indicated that he had not been in Australia since 16 November 2023. It noted this information was relevant to the review because, if true, he could not be granted a protection visa. The applicant was invited to comment on or respond to this information in writing and was advised that his comments or response should be received by 2 April 2024. Further, that if the Tribunal did not receive his comments or response within the period allowed or as extended, the Tribunal may make a decision on the review without taking any further action to obtain his views on this information. He was also advised that he will also lose any entitlement he might otherwise have had under the Migration Act to appear before the Tribunal to give evidence and present arguments.

7. No comments or response were received by the applicant by 2 April 2024, and none have been received to date.

8. Although the applicant did not provide a response or comment within the prescribed timeframe, the Tribunal retains the discretion to invite the applicant to a hearing.

9. In the circumstances of this case, however, the Tribunal has decided not to exercise its discretion to invite the applicant to a hearing, as the Tribunal is satisfied that the applicant is not in Australia and therefore, he does not satisfy the requirements of s 36(2) and cannot be granted a protection visa.

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

    DECISION

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

    Rebecca Mikhail
    Member