1904240 (Refugee)

[2022] AATA 3026

1904240 (Refugee) [2022] AATA 3026 (29 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1904240

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Jessica Henderson

DATE:29 August 2022

PLACE OF DECISION:  Perth

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

Statement made on 29 August 2022 at 1:15pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – applicant departed Australia – invitation to comment unable to be delivered to applicant by email or authorised recipient by phone – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36(2), 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 dependants.

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 9 February 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant, who is a citizen of Malaysia, applied for the visa on 30 October 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 2022. 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 and inviting the applicant to comment on the information. The correspondence was sent to the applicant’s authorised recipient email address on 11 July 2022.  The Tribunal immediately received a delivery status notification failure, indicating that the email was not deliverable.  On 24 August 2022 the Tribunal resent the correspondence using a variation of the applicant’s email address, noting that there was a possibility that the applicant’s handwriting made it unclear whether a particular symbol was intended to be an ‘s’ or an ‘8’. The Tribunal again immediately received a delivery status notification failure, indicating that the email was not deliverable.  On 29 August 2022 an officer of the Tribunal attempted to contact the applicant by way of his authorised recipient telephone number but was unable to do so.

6. 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, irrespective of the applicant's substantive case for the grant of the visa.

   DECISION

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

   Jessica Henderson
   Member