1826195 (Refugee)

[2018] AATA 4532

1826195 (Refugee) [2018] AATA 4532 (9 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1826195

COUNTRY OF REFERENCE:                  Nepal

MEMBER:Brendan Darcy

DATE:9 October 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 09 October 2018 at 1:52pm

CATCHWORDS
REFUGEE – protection visa –Nepal – invalid application – failure to attend hearing – applicant out of Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 36, 362B

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 Home Affairs on 5 September 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 Nepal, applied for the visa on 17 August 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. On 21 October 2018, the applicant was invited to a scheduled hearing on 9 October 2018 at 10.30 am to give evidence and provide evidence as to the reasons Australia owed him its protection obligations. On the same day as the invitation was issued, the applicant conveyed to the Tribunal on the same the day that he will attend the scheduled hearing. However, the applicant did not attend. Having received information that the applicant had departed Australia, the hearing was cancelled. Having failed to attend a scheduled hearing, the Tribunal has accordingly proceeded with making this decision pursuant to s.362B of the Act.

6. Based on the decision record submitted as part of this review application, the applicant originally arrived in Australia as a [temporary] visa holder on 25 June 2011 and became unlawful on 18 October 2014. Although he spent as almost four years without any lawful migration status in Australia, he did not apply for a protection visa while in the community. The applicant was placed in immigration detention on 14 August 2018 after the applicant was apprehended by the [Police] as an unlawful non-citizen in Australia. From immigration detention, the applicant applied for a protection visa on 23 August 2018.

7. Movement records also indicate that the applicant is not in Australia. It appears that he left Australia on 25 September 2018.  According to the correspondence between the Department of Home Affairs and the Tribunal, the applicant voluntarily departed Australia on 25 September 2018.  

8. 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.

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

   DECISION

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

    Brendan Darcy
    Member