1912473 (Refugee)

[2024] AATA 2330

1912473 (Refugee) [2024] AATA 2330 (27 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Mohammad Ajmal MALIK (MARN: 0105748)

CASE NUMBER:  1912473

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Alison Murphy

DATE:27 June 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 27 June 2024 at 4:09pm

CATCHWORDS

REFUGEE – Protection visa – Pakistan – applicant not in Australia – outside of migration zone – failed to attend hearing – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 36, 65, 425, 426

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 10 May 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant is a citizen of Pakistan who applied for the visa on 3 August 2017.

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 on [date] February 2023. 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.

6. The applicant’s representative responded to the Tribunal’s letter by stating that to his knowledge the applicant had left Australia for good and was no longer available in Australia.

7. As the applicant has not withdrawn his review and none of the circumstances set out in s 425 of the Act apply, the applicant was invited to appear before the Tribunal on 27 June 2024 by video to give evidence and make arguments in the review. There was no appearance by the applicant or his representative at the hearing.

8. In the above circumstances the Tribunal considers it appropriate to make decision on the review without taking any further action to allow the applicant to appear before it pursuant to s 426A.

9. 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.

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

    DECISION

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

    Alison Murphy
    Member