1918408 (Refugee)

[2020] AATA 2070

1918408 (Refugee) [2020] AATA 2070 (3 June 2020)

DECISION RECORD

DIVISION:  Migration & Refugee Division

CASE NUMBER:  1918408

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:  Meredith Jackson

DATE:  3 June 2020

PLACE OF DECISION:  Brisbane

DECISION:  The Tribunal affirms the decision not to grant the

applicant a protection visa.

Statement made on 03 June 2020 at 11:14am

CATCHWORDS

REFUGEE – protection visa – Malaysia – applicant left Australia – no current visa – no response to tribunal’s communication – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), 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 dependants.

In accordance with s.431 of the Migration Act 1958, the Tribunal will not publish any statement which may identify the applicant or any relative or dependant of the applicant.

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 25 June 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 Malaysia, applied for the visa on 3 May 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. The Department of Home Affairs records which are available to the Tribunal indicate that the applicant is not in Australia. It appears that she left Australia [in] November 2019 and does not hold a current Australian visa.

6. The Tribunal wrote to the applicant on 25 February 2020 advising that the Department’s records showed that she was not in Australia and did not have a visa that enabled her to return, and hence she could not be granted a protection visa. The applicant was invited to comment on the information by 10 March 2020. No response to the invitation has been received.

7. 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.

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

   DECISION

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

Meredith Jackson
Member

Case Number 1918408    Page 2 of 2