1908577 (Refugee)

[2023] AATA 604

1908577 (Refugee) [2023] AATA 604 (16 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1908577

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Jessica Henderson

DATE:16 March 2023

PLACE OF DECISION:  Perth

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

Statement made on 16 March 2023 at 10:33am

CATCHWORDS
REFUGEE – protection visa – Malaysia – applicant left Australia – no response to tribunal’s invitation to comment – not necessary to consider substantive case – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36(2), 65(1)

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 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 is a citizen of Malaysia, applied for the visa on 7 January 2019.

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] October 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 Tribunal did not receive a response.

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.

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

   DECISION

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

   Jessica Henderson
   Member