1831454 (Refugee)

[2023] AATA 603

1831454 (Refugee) [2023] AATA 603 (14 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1831454

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Member Nathan Goetz

DATE:14 March 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 14 March 2023 at 11:32am

CATCHWORDS
REFUGEE – protection visa – Malaysia – applicant left Australia – no response to tribunal’s invitation to comment – not necessary to consider substantive case – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36(2), 65(1), 424A, 425(2)(c), (3)

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 under s 65 of the Migration Act 1958 (Cth) (the Act) by a delegate of the Minister to refuse to grant the applicant a protection visa.

2. The applicant identifies as a male citizen of Malaysia. He arrived n Australia [in] November 2017 holding an electronic travel authority visa. On 21 February 2018 he applied for the protection visa. On 3 October 2018 the delegate refused to grant the protection visa, and the applicant then applied to the Tribunal on 26 October 2018 for the decision to be reviewed. After applying to the Tribunal to review the decision, the applicant departed Australia [in] July 2022 and has not returned.

3. For the following reason, the Tribunal has decided to affirm the decision under review.

   REQUIREMENTS FOR THE VISA

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. The Tribunal wrote to the applicant advising that its records showed that he is not in Australia and therefore could not be granted a protection visa: s 424A. The applicant did not respond to this information, meaning that the Tribunal was no longer obligated to invite him to appear at a Tribunal hearing: s 425(2)(c), (3).

7. 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.

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

   DECISION

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

   Nathan Goetz
   Member