1906386 (Refugee)

[2021] AATA 3371

1906386 (Refugee) [2021] AATA 3371 (2 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1906386

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Nathan Goetz

DATE:2 July 2021

PLACE OF DECISION:  Sydney

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

Statement made on 02 July 2021 at 2:32pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – applicant departed Australia – obligation to invite the applicant to a Tribunal hearing – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 424A, 425

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

2. The applicant identifies as a citizen of Malaysia who arrived in Australia [in] September 2016 holding an electronic travel authority visa. On 29 November 2016 the applicant applied for a student visa.  This visa was granted on 6 January 2007.

3. [In] November 2017 the applicant departed Australia. [In] December 2017 the applicant returned to Australia holding the student visa. [In] March 2018 the applicant departed Australia. [In] September 2018 the applicant arrived in Australia holding an electronic travel authority visa.

4. On 14 December 2018 the applicant applied for a protection visa. On 25 February 2019 the delegate refused to grant the protection visa. On 18 March 2019 the applicant applied to the Tribunal for a review of the refusal decision. [In] December 2020 the applicant departed Australia.

5. On 3 May 2021 the Tribunal wrote to the applicant utilising s.424A of the Act and raised with the applicant information that would be a reason or part of the reason for affirming the decision under review. The letter detailed that 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 meant that a protection visa may only be granted if the applicant is in Australia. The letter detailed that movement records indicate that the applicant departed Australia and therefore could not be granted the visa. The letter invited the applicant to comment on or respond to the information.

6. On 17 May 2021 the applicant responded to the invitation. The applicant explained his reason for leaving Australia to Malaysia. The applicant wrote that it was an emergency situation as his [relative] was admitted to hospital on 20 December 2020 and died [later in] December 2020. The applicant described his [relative]’s role in raising the applicant. The applicant wrote that the applicant was planning to return to Australia once the international borders were open. The applicant hoped that the visa will remain the same and that the applicant will be entitled to live and work in Australia and provide financial support to the applicant’s family, spouse and children. The applicant attached two letters to his response to support the fact that the applicant’s [relative] required medical assistance, and a certificate for the register of death of the applicant’s [relative].

7. As the applicant responded to the s.424A letter, and notwithstanding that the information meant that the applicant could not be granted the protection visa, the obligation remained for the Tribunal to invite the applicant to appear at a Tribunal hearing to give evidence and present arguments relating to the issues arising in relation to the decision under review. The obligation to invite the applicant to a Tribunal hearing only ceases in limited circumstances: s.425(2).

8. The Tribunal wrote to the applicant on 17 June 2021 and advised that the Tribunal could hear the applicant’s review application on 23 June 2021. The letter asked the applicant to consent to the holding of this hearing. However, the Tribunal did not respond in time for the Tribunal to issue the hearing invitation for 23 June 2021. Accordingly, the Tribunal was required to invite the applicant to a Tribunal hearing within the prescribed statutory period. The time for the Tribunal hearing was set for 10:15am on 6 July 2021. As the applicant was offshore, the Tribunal determined that a telephone hearing was appropriate. The applicant responded to the hearing invitation by return email with a completed hearing invitation form. The applicant again attached the register of death and one of the two medical reports.

9. On 30 June 2021 the Tribunal wrote to the applicant and advised that the Tribunal had considered the material provided and would be able to make a decision on the review application without a Tribunal hearing. The Tribunal needed to obtain the applicant’s consent to make a decision without holding a hearing: s.425(2)(b). The Tribunal’s view for doing so was to enable the Tribunal to make a decision on the review application as efficiently as possible, given that the applicant was unable to meet the requirements for the protection visa. In the Tribunal’s view, it was a waste of resources for the Tribunal to have the applicant appear at a Tribunal hearing where the Tribunal would again note that the applicant could not be granted the protection visa because he was not in Australia.

10. On 2 July 2021 the applicant responded to the Tribunal’s request to consent to a decision without holding a Tribunal hearing. The applicant responded:

    Yes I give my consent to the Members/Parties to make a decision.  I hope I have bright future to be able stay and live in Australia.

11. On 2 July 2021 the Tribunal cancelled the hearing scheduled on 5 July 2021 and proceeded to make a decision on the review application.

    FINDINGS AND REASONS

12. For the following reasons, the Tribunal has decided to affirm the decision under review.

13. 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. As detailed above, s.36(2) of the Act requires that the applicant be in Australia to be granted a protection visa.

14. Movement records indicate that the applicant is not in Australia. The records demonstrate that the applicant left Australia [in] December 2020 and has not returned. The Tribunal notes the applicant’s reasons for leaving Australia and returning to Malaysia, but that is irrelevant to determining whether the applicant meets the requirements for the visa.

15. 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.

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

    DECISION

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

    Nathan Goetz
    Member