1913147 (Refugee)

[2023] AATA 598

1913147 (Refugee) [2023] AATA 598 (14 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1913147

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Sheridan Lee

DATE:14 March 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 14 March 2023 at 11:38am

CATCHWORDS
REFUGEE – protection visa – Malaysia – applicants 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 decisions made by a delegate of the Minister for Home Affairs on 20 May 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act). The applicants, who claim to be citizens of Malaysia, applied for the visas on 25 September 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 applicants are not in Australia. It appears that the first named applicant left Australia on 10 December 2019 and the second maned applicant left Australia [in] September 2020. The Tribunal wrote to the applicants on 17 February 2023 advising that its records showed that they are not in Australia and therefore could not be granted protection visas and inviting the applicants to comment on the information. No response had been received on the date of this decision.

6. The Tribunal is satisfied from the circumstances set out above that the applicants are not in Australia. Therefore, the applicants do not satisfy the requirements of s 36(2) and cannot be granted protection visas.

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

   DECISION

8. The Tribunal affirms the decision not to grant the applicants protection visas.

   Sheridan Lee
   Member