1836365 (Refugee)

[2020] AATA 3367

1836365 (Refugee) [2020] AATA 3367 (1 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1836365

COUNTRY OF REFERENCE:                   China

MEMBER:Meredith Jackson

DATE:1 July 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 01 July 2020 at 11:20am

CATCHWORDS
REFUGEE – protection visa – China – 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 30 November 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 China, applied for the visa on 24 October 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. 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. The Department of Home Affairs records which are available to the Tribunal indicate that the applicant is not in Australia. It appears that she left Australia [in] January 2020 and does not hold a current Australian visa.

6. The Tribunal wrote to the applicant on 30 April 2020 advising that the Department’s records showed that she was not in Australia and did not have a visa that enabled her to return, and hence she could not be granted a protection visa. The applicant was invited to comment on the information by 14 May 2020.

7. On 4 June 2020 the applicant sent a response by email to the Tribunal stating “Dear sir! Hello! so sorry! I'm sorry I wrote back so late! Can I apply to return to Australia? Because I am a breast cancer patient and need to return to Australia for treatment. Please give me another chance. thank you!”. The applicant’s response confirms that she has departed Australia and is currently unable to return.

8. Accordingly, 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.

    Meredith Jackson
    Member