1910066 (Refugee)

[2022] AATA 562

1910066 (Refugee) [2022] AATA 562 (31 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1910066

MEMBER:Shahyar Roushan

DATE:31 January 2022

PLACE OF DECISION:  Sydney

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

Statement made on 31 January 2022 at 1:31pm

CATCHWORDS

REFUGEE – Protection visa – Bangladesh ––applicant left Australia – not in migration zone – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 36, 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 dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Home Affairs on 13 April 2018 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 Bangladesh, applied for the visas on 6 June 2016.

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 Department’s movement records indicate that the applicant is not in Australia. It appears that he left Australia on [date] December 2021. At the time of his departure, he did not hold a visa that would enable him to return to Australia.

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.

   Shahyar Roushan
   Senior Member