1907659 (Refugee)

[2022] AATA 677

1907659 (Refugee) [2022] AATA 677 (15 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1907659

COUNTRY OF REFERENCE:                   Egypt

MEMBER:Luke Hardy

DATE:15 February 2022

PLACE OF DECISION:  Sydney

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

Statement made on 15 February 2022 at 2:27pm

CATCHWORDS

REFUGEE – protection visa – Egypt –applicant has departed Australia – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 36, 65

Migration Regulations 1994, Schedule 2

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 25 March 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 Egypt, applied for the visa on 1 March 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. The Tribunal invited the applicant to attend a hearing before it on 22 March 2022, advising that if he did not attend the hearing the Tribunal might make a decision on the papers without providing him with a further opportunity to appear before it.

6. On 9 February 2022, the Tribunal received notification from the applicant’s authorised recipient saying that the applicant had departed Australia. The Tribunal checked the applicant’s movement records for confirmation and found that the applicant had indeed departed Australia on [date] July 2021, on a bridging visa that did not enable him to re-enter. The Tribunal did not write a natural justice letter in this instance as it would have to be sent to the applicant’s authorised recipient who had already notified the Tribunal of the applicant’s departure in the first place.

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.

   Luke Hardy
   Member