1928078 (Refugee)

[2023] AATA 2344

1928078 (Refugee) [2023] AATA 2344 (24 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Al Musawi Baker (MARN: 0601647)

CASE NUMBER:  1928078

COUNTRY OF REFERENCE:                  Saudi Arabia

MEMBER:Sean Baker

DATE:24 April 2023

PLACE OF DECISION:  Sydney

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

Statement made on 24 April 2023 at 7:53am

CATCHWORDS

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

LEGISLATION

Migration Act 1958, 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 September 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 Saudi Arabia, applied for the visa on 16 June 2016.

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 she left Australia on [date] June 2022. The Tribunal wrote to the applicant advising that its records showed that she is not in Australia and therefore could not be granted a protection visa and inviting the applicant to comment on the information. The applicant’s representative provided a withdrawal form as he presumed the applicant could not succeed.

6. The applicant herself responded, however. In her response she acknowledged that she was outside of Australia and did not hold a visa enabling her to return to Australia. She noted that she understood that her current location outside of Australia may present challenges to her application for a Protection visa, but she remained hopeful that the Australian government will consider her case and the reasons for her departure from the country.

7. She went on to say that she had left Australia due to circumstances beyond her control, she had been a victim of persecution and violence in her home country and was forced to flee to seek safety and protection for herself. She was forced to leave the country by the Saudi Arabian government as they checked for all Saudi citizens who were finishing study and still remain in the country and they found her and asked her to leave. She could not do anything and was worried for her safety as they have the power to do anything. She worried something bad will happen to her as it had to other Saudi girls. So she felt forced to leave.

8. The applicant appeared at a hearing on 21 April 2023. At that hearing she said that she had no choice and no control. She said that she was sent here as a student by the government of Saudi Arabia. Her studies were meant to be finished in 2019 but she remained (and sought protection). Once the period of her studies had finished in 2019 she was contacted by representatives of the Saudi embassy who asked why she had not returned. She told them she was studying. They contacted her again in 2021 and 2022. They told her she did not have a student visa and was not studying so she must return. They purchased a ticket for her to return, and fearful of what they may do, she accepted and returned. I explained that the Act only allowed protection for those in Australia, and having left the country, despite this being, as I understood, under difficult circumstances, the Act did not allow the granting of a protection visa to those outside Australia, and so I had no chance but to affirm the decision. The applicant indicated she understood.

9. 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.

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

    DECISION

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

    Sean Baker
    Member