1824394 (Refugee)

[2019] AATA 4208

1824394 (Refugee) [2019] AATA 4208 (12 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1824394

COUNTRY OF REFERENCE:                  Taiwan

MEMBER:Nathan Goetz

DATE:12 July 2019

PLACE OF DECISION:  Sydney

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

Statement made on 12 July 2019 at 12:05pm

CATCHWORDS
REFUGEE – protection visa – Taiwan – applicant departed Australia – deferral of review decision request declined – 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. [July] 2017 was when the applicant, who the Tribunal is satisfied is a citizen of Taiwan, most recently arrived in Australia on a [student] visa. He had previously travelled in and out of Australia in 2013 and 2015 on a working holiday visa.

2. On 14 September 2017 while the applicant was in Australia he applied for a protection visa.

3. He was invited to attend an interview with the delegate on 13 August 2018 but he did not do so. The delegate of the Minister for Home Affairs refused to grant the protection visa on 16 August 2018 under s.65 of the Migration Act 1958 (the Act).

4. On 22 August 2018 the applicant applied to the Tribunal for a review of the refusal decision. He attached a copy of the delegate decision to the review form.

5. On 31 May 2019 the Tribunal wrote to the applicant under s.424A of the Act to invite him to comment or respond to adverse information that would be a reason or part of the reason for affirming the refusal decision. This information was that the applicant had departed Australia [in] March 2019 and not returned.

6. 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. As the applicant was not in Australia, the Tribunal would need to affirm the refusal decision.

7. The applicant was invited to provide a response to this information in writing by 14 June 2019. His response on 2 June 2019 confirmed that he left Australia [in] March 2019. He wrote that the reason for doing so was because his father was in [hospital] and that his father’s situation was very bad. The applicant asked for an extension of time and noted that he would return to Australia as soon as possible. The Tribunal takes that request to mean that the applicant sought to delay any decision on his review application until he returned to Australia and not a request for an extension of time to respond to the s.424A letter because he had provided a written response to the information.

8. Given that the applicant was not in Australia, it was clear to the Tribunal that he would not be able to meet the criterion that the applicant is in Australia at the time of making a decision on his protection visa application. Aside from the applicant writing that he would return to Australia as soon as possible, there was nothing persuasive before the Tribunal to suggest that the applicant had made plans to do so, or would in fact be able to return to Australia. Accordingly, the Tribunal refused to grant the applicant his request for a deferral of the review decision.

9. As the applicant had responded to the s.424A letter, the Tribunal could not proceed to a decision without inviting the applicant to attend a hearing, despite the fact that the applicant would clearly not be able to meet the protection visa criterion. There are only certain circumstances where the Tribunal is empowered to make a decision without inviting the applicant to attend a hearing. The exceptions to the statutory duty to do so are:

   ·if the review can be decided in the applicant’s favour on the basis of the material before the Tribunal: s.425(2)(a);

   ·if the applicant consents to the Tribunal deciding the review without the applicant appearing before it: s.425(2)(b); or

   ·if the applicant fails to comply within the prescribed time with a request to provide additional information or to comment on, or respond to, adverse information: s.425(2)(c).

10. On 24 June 2019 the applicant was duly invited to appear at a hearing on 12 July 2019 at 11:00am for a one hour hearing. The applicant was requested to complete the hearing invitation and return it indicating whether he would attend. Attached to the hearing invitation was an information sheet indicating that the hearing may be conducted in person, by video conference or by telephone.

11. By 10 July 2019 the Tribunal had still not received a response about whether the applicant would participate in the hearing of 12 July 2019. The Tribunal contacted the applicant in writing on 10 July 2019 to follow up the outstanding completed hearing invitation, and indicated that the applicant would be able to appear at the hearing by telephone. The Tribunal requested that the applicant indicate whether he would be appearing at the hearing by telephone, and requested that he return the completed hearing invitation form and provide a contact number so the Tribunal could contact him on 12 July 2019.

12. The applicant never responded to the Tribunal invitation or the follow up email. He did not appear, either in person or by telephone, at the hearing commencing at 11:00am on 12 July 2019.  A subsequent check of the departmental records at 12noon indicated that the applicant had still not returned to Australia. The Tribunal understands that the information contained in the departmental movement records is instantaneously updated when a person departs or leaves Australia.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. 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.

15. The Tribunal is satisfied from the circumstances as described above that the applicant is not in Australia and, as noted above, the applicant cannot meet the criteria for a protection visa because he is not in Australia. Therefore, the applicant does not satisfy the requirements of s.36(2) and cannot be granted a protection visa.

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

    DECISION

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

    Nathan Goetz
    Member