1906660 (Refugee)
[2024] ARTA 480
•26 November 2024
1906660 (REFUGEE) [2024] ARTA 480 (26 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs
Tribunal Number: 1906660
Tribunal:General Member T Summerfield
Place:Perth
Date: 26 November 2024
Decision:The Tribunal affirms the decision not to grant the application protection visa.
I, General Member T. Summerfield, certify that
this is the Tribunal’s statement of decision and reasons.
Statement made on 26 November 2024 at 10.11am
CATCHWORDS
REFUGEE – protection visa – Malaysia – applicant departed Australia – no response to tribunal’s invitation to comment – not necessary to consider substantive case – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 36(2), 65(1)
Administrative Review Tribunal Act 2024 (Cth), s 106(5)
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 21 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 claims to be a citizen of Malaysia, applied for the visa on 10 September 2018.
For the following reasons, the Tribunal has decided to affirm the decision under review.
On 10 July 2024 the Tribunal wrote to the applicant inviting him to complete a pre-hearing information form within 7 days. The applicant sought further time to respond. The Tribunal agreed to extend the response time by 7 days, to 26 July 2024. The applicant did not submit the pre-hearing information form or any other information.
On 25 October 2024 the Tribunal wrote to the applicant notifying him that a hearing had been scheduled for 20 November 2024 and inviting him to attend. The letter explained that if the applicant did not attend, a decision on the review may be made, without the Tribunal taking any further action to allow or enable him to appear before the Tribunal, or may dismiss the application for review without any further consideration of the application or the information before the Tribunal. Attached to the invitation was an ‘Information About Hearings’ Factsheet and a “Response to hearing notice’. The applicant was invited to return the ‘Response to hearing notice’ within 7 days. The applicant did not return the form or reply in any way to the hearing invitation.
The Tribunal subsequently obtained information in the form of Departmental records which indicate that the applicant is not in Australia, having departed Australia [in] August 2024. That information indicates that the applicant does not have a visa which would enable him to return to Australia.
On 30 October 2024 the Tribunal wrote to the applicant, inviting him to comment on or respond to this information. The letter advised that this information is relevant to the review because if true, the applicant could not be granted a protection visa. The applicant was invited to respond by 6 November 2024. He did not respond.
The applicant did not attend the hearing on 20 November 2024. A Tribunal Officer unsuccessfully tried to call the applicant twice on the number listed with the Tribunal.
The circumstances under which the Tribunal may reach a decision without a hearing are set out in s 106 of the Administrative Review Tribunal Act 2024 (ART Act). They include where the applicant fails to appear at the hearing and it appears to the Tribunal that the issues for determination can be adequately determined in the absence of the applicant: s 106(5) ART Act.
The Tribunal is satisfied that the applicant has failed to appear at a Tribunal case event, the applicant is not a non-participating party, the applicant has received appropriate notice of the date, time and place of the Tribunal case event; and the issues for determination can be adequately determined in the absence of the applicant: s 106(5)(a)-(d).
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. Section 36(2) of the Act provides that a criterion for the grant of 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 present in Australia at the time of the decision.
The Tribunal has decided to reach a decision on the review rather than dismiss the application which would preserve the capacity for the applicant to seek a reinstatement. This is because the applicant is not in Australia and therefore does not meet the requirements for being granted a protection visa. There is therefore no utility in preserving the scope for reinstatement when the criteria for granting a protection visa, namely that the applicant is in Australia is not, and cannot be, met.
Based on the Department records, I find the applicant is not in Australia and departed Australia [in] August 2024. 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.
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.
Having reached this conclusion, it is not necessary to consider the applicant's substantive case for the grant of the visa.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Date of hearing: 20 November 2024
Representative for the Applicant: Mr Victor Lo
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