1923582 (Refugee)

[2024] AATA 1430

1923582 (Refugee) [2024] AATA 1430 (29 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1923582

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Amy Faram

DATE:29 May 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 29 May 2024 at 10:48am

CATCHWORDS

REFUGEE – Protection visa – Vietnam – applicants not in Australia – outside of migration zone – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 36, 65, 424A

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 20 August 2019 to refuse to grant the Applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The Applicant, who claims to be a citizen of Vietnam, applied for the visa on 23 October 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 on [date] June 2023 as the holder of Bridging visa E. On 30 April 2024, the Tribunal wrote to the Applicant pursuant to s 424A advising that its records showed that he is not in Australia and did not hold a visa that would allow him to return to Australia, and that, therefore, he could not be granted a protection visa. The Applicant was invited to comment on the information by 14 May 2024.

6. On 1 May 2024, the Tribunal received a response from a Ms Anna Nguyen who, it appears, received the email and had previously assisted the Applicant to communicate with the Tribunal. The email stated that Ms Nguyen had ‘not been about to contact with [the Applicant] since last year in October 2023’ (sic) and that she could not respond to the correspondence from the Tribunal. No other correspondence has been received by the Tribunal.

7. As the Applicant failed to respond to an invitation under s424A within the prescribed period, the Tribunal may make a decision on the review without inviting the Applicant to a hearing. In this case, the information before the Tribunal indicates the Applicant departed Australia more than 11 months ago. At the time of his departure he did not hold a visa that would allow him to return to Australia, and he cannot be granted the protection visa while he is outside Australia. In these circumstances, the Tribunal considers it appropriate to make a decision on the review without inviting the Applicant to a hearing.

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.

    Amy Faram
    Member