1927381 (Refugee)

[2022] AATA 4314

1927381 (Refugee) [2022] AATA 4314 (21 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1927381

COUNTRY OF REFERENCE:                   South Africa

MEMBER:Mara Moustafine

DATE:21 September 2022

PLACE OF DECISION:  Sydney

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

Statement made on 21 September 2022 at 12:32pm

CATCHWORDS  
REFUGEE – protection visa – South Africa – applicant departed Australia – 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 decisions made by a delegate of the Minister for Home Affairs on 23 September 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 South Africa, applied for the visas on 3 June 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. Movement records indicate that the applicants are not in Australia. It appears that they left Australia [in] March 2022. The Tribunal wrote to the applicants 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.

6. No response was received from the applicants.

7. 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.

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

   DECISION

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

   Mara Moustafine
   Member