1911688 (Refugee)

[2020] AATA 2249

1911688 (Refugee) [2020] AATA 2249 (21 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1911688

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Paul Windsor

DATE:21 May 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 21 May 2020 at 5:05pm

CATCHWORDS

REFUGEE – protection visa – Vietnam – applicant left Australia – 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 a decision made by a delegate of the Minister for Home Affairs on 6 May 2019 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act). The applicant, who claims to be a citizen of Vietnam, applied for the visa on 24 August 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. Movement records indicate that the applicant is not in Australia. It appears that she left Australia [in] February 2020. The Tribunal wrote to the applicant advising that its records showed that she is not in Australia and therefore could not be granted a protection visa and inviting her to comment on the information. The applicant responded on 15 May 2020, commenting as follows:

   Before I returned to Viet Nam, it was my difficult decision which make me to think a lot. I booked a urgent flight in emergency situation because my mum and dad is about to divorce, due to this my mum become really ill physical and mental, which make my mum to hospitalised and diagnosed with [a medical condition] then I don’t have a choice beside go back to Viet Nam although I know that I was under the protect visa. I hope you understand for my situation, no one want their family broken and separate. Also due to corona virus pandemic lockdown a lot store and shop were closing, we can’t go to work there is no income for me to live, in the meant time everything slowly getting back as normal, I just hope you give me a chance to come back Australia. I chose Australia is my second home because I love the people and culture were beautiful. I find Australia treat everyone equally and freedom. Australia protect their people and refugee. I grateful what Australia has been given to me. I want to live in my second home, and I want to pay back Australia. I wish to have a chance to come back to Australia. I hope your sympathy for my situation.

6. The Tribunal is satisfied from the evidence set out above that the applicant is not in Australia. The information before the Tribunal indicates that she does not hold a valid visa to enable her to return to Australia.  The Tribunal does not have any discretion to grant a protection visa to someone who 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.

   Paul Windsor
   Member