1919577 (Refugee)

[2020] AATA 5500

1919577 (Refugee) [2020] AATA 5500 (1 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1919577

COUNTRY OF REFERENCE:                   India

MEMBER:Tania Flood

DATE:1 December 2020

PLACE OF DECISION:  Sydney

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

Statement made on 01 December 2020 at 2:22pm

CATCHWORDS
REFUGEE – protection visa – India – applicant left Australia – no response to tribunal’s invitation to comment – 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 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 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 India applied for the visa on 1 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 he left Australia [in] March 2020.

6. On 15 July 2020 the Tribunal wrote to the applicant via his authorised representative 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.

7. On 15 July 2020 the applicants authorised recipient emailed the Tribunal to advise that [Law firm] is no longer acting for the applicant in relation to this matter.  The email advised that the Tribunal’s letter was forwarded to the address known to them with a request that the applicant contact the Tribunal directly.  The applicant was copied into the email.  The Tribunal received no further correspondence from the applicant.

8. 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.

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

   DECISION

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

    Tania Flood
    Member