1827482 (Refugee)

[2024] AATA 1334

1827482 (Refugee) [2024] AATA 1334 (13 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Mohammed Mirza (MARN: 0747557)

CASE NUMBER:  1827482

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Bryn Butler

DATE:13 May 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 13 May 2024 at 11:24am

CATCHWORDS
REFUGEE – protection visa – Vietnam – Australian citizen – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 4, 29, 36, 65, 424A

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 31 August 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant applied for the visa on 8 March 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. Subsection 36(2) of the Act relevantly 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 can only be granted if the applicant is a non-citizen. Indeed, the object of the Act is to regulate the presence in Australia of non-citizens, and visas cannot be granted to Australian citizens (see s 4 and s 29 of the Act). The issue in this case is whether the applicant is now an Australian citizen.

5. According to the Department of Home Affairs’ records, accessed on 6 March 2023 and 18 April 2024, the applicant became an Australian citizen on 29 October 2022 and remains an Australian citizen. The Tribunal wrote to the applicant on 6 March 2023 to ask whether she wanted to continue with the review application given she had become an Australian citizen, on 25 March 2024 to inform her that her file was being prepared to be given to a member and also on 26 April 2024 pursuant to s 424A where she was asked to comment on or respond to the information that she had become an Australian citizen and that she cannot be granted a visa if she is an Australian citizen. The Tribunal has not received a response to its correspondence and in these circumstances has decided to proceed to decision.[1]

   [1] Pursuant to ss 424C(2) and 425(2)(c) of the Act.

6. The Tribunal is satisfied on the evidence before it that the applicant is now an Australian citizen. It follows that the applicant does not satisfy the requirements of s 36(2), and cannot be granted a protection visa.

   DECISION

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

   Bryn Butler
   Member