1827022 (Refugee)

[2020] AATA 2180

1827022 (Refugee) [2020] AATA 2180 (29 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1827022

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Meena Sripathy

DATE:29 May 2020

PLACE OF DECISION:  Sydney

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

Statement made on 29 May 2020 at 11:02am

CATCHWORDS

REFUGEE – protection visa – Malaysia – applicant not in Australia – returned to home country to attend to compulsory court matter – 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 Home Affairs on 22 August 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 13 March 2018.

2. The applicant appeared before the Tribunal by telephone on 29 May 2020 to give evidence and present arguments.

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 she left Australia [in] November 2019. The Tribunal wrote to the applicant advising that its records showed that she is not in Australia and therefore could not be granted a protection visa and inviting the applicant to comment on the information.

7. On 24 February 2020, the applicant responded to the invitation to comment with a letter explaining that she returned to Malaysia because she had to handle a matter pertaining to the allocation of her matrimonial properties and she had a compulsory court attendance [in] December 2019.  She attached a letter from her lawyers setting out this obligation.  She applied for a BVB to the Department on 16 November 2019 but the application was refused and she still had to leave Australia even though she did not have a visa to return.  Her case in Malaysia was resolved in January 2020 and she would like to return to Australia.  She accepts full responsibility for her actions and is truly sorry. She states she is more comfortable and happy to stay in Australia as her life is more stable. She has a permanent job in [Company 1] and if she came back to Australia she plans to work there. She requests consideration from the AAT to grant her a visa to return back to Australia.

8. As the applicant responded to the invitation to comment, on 12 May 2020 the applicant was invited to appear before the Tribunal by telephone on 29 May 2020 to present evidence and arguments on the issue before it.  She was again advised that the issue is that s36(2) of the Act requires an applicant for a protection visa to be in Australia and a visa can only be granted if she is in Australia.

9. On 27 May 2020, the applicant indicated that she would appear by telephone as invited, that she did not require an interpreter, and provided the following documents in support of her case: evidence of the BVB application made on 6 November 2019 and copies of her earlier response to the invitation to comment letter.

10. At the hearing the applicant reiterated her explanation for departing Australia despite the refusal of a BVB to allow her to return.  She explained that it was a very important compulsory court matter that she had to return for, which has since been resolved.  She would now like to return to Australia.  The Tribunal explained that it is only considering in this review the refusal of her protection visa application and it has no power to consider an application for a visa for her to return to Australia.  The only issue arising before it in this matter is that she is outside Australia and a requirement for the grant of a protection visa in s36(2) is that she be in Australia.  The applicant indicated that she understood and she apologises for leaving but she had to. She had nothing further to say on this issue.

11. 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.

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

    DECISION

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

    Meena Sripathy
    Member