1832393 (Refugee)

[2019] AATA 5785

1832393 (Refugee) [2019] AATA 5785 (26 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1832393

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Alison Mercer

DATE:26 June 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 26 June 2019 at 3:15pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – no response to Tribunal’s communication – applicant departed Australia – 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 12 October 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 9 April 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. Movement records indicate that the applicant is not in Australia. It appears that he left Australia [in] February 2019. The Tribunal wrote to the applicant on 29 May 2019 pursuant to s.424A advising that its records showed that he is not in Australia and therefore could not be granted a protection visa and inviting the applicant to comment on the information (or request an extension of time to do so) by 12 June 2019.  The letter advised the applicant that if he failed to provide comments (or request an extension of time to do so) by the due date, he would lose his entitlement to a hearing and the Tribunal might make its decision on the available evidence.

6. The Tribunal did not receive any comments, response or a request for an extension of time from the applicant by the due date, and it has not received any further communication from him. The Tribunal is satisfied that its s.424A letter was sent to the correct email address nominated by the applicant for correspondence.

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.

   Alison Mercer
   Member