1928446 (Refugee)

[2020] AATA 1549

1928446 (Refugee) [2020] AATA 1549 (12 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1928446

COUNTRY OF REFERENCE:                   India

MEMBER:Paul Windsor

DATE:12 May 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 12 May 2020 at 12:10pm

CATCHWORDS
REFUGEE – protection visa – India – 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 a decision made by a delegate of the Minister for Home Affairs on 16 September 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 5 October 2017.

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] November 2019. The Tribunal wrote to the applicant on 21 February 2020 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. The applicant responded on 6 March 2020 commenting as follows:

   I am writing this letter on your invitation to comment on the information, that I am currently out of Australia, which is correct. I was given a family reunion visa to [Country 1] as my wife insisted, she did not want me to live a life away from her and my son. I was granted the visa in October 2019 and I exited Australia in November 2019 in order to see my son. This was a big mistake, as realized that I did loose (sic) my bridging visa and could not return to Australia. Tough being with my family I am facing a lot of difficulties in this country, unknown to me in culture and language. Australian government, as I told your colleague in my letter dated July 30th, 2019 made a huge mistake, in not informing us on our cancellation of the 457-visa and even after accepting this mistake they did not give me and my family any further chance to apply for any visa. The reason for this was, that we have been granted a Bridging visa E and not Bridging visa A, which we have been eligible for. The immigration department did not do their work correctly in our case, and we are the ones, who are still facing difficulties of this outcome.

   Even before applying for a protection visa I had the issue sin (sic) India, but which law tells me to apply for protection, while holding a spouse visa at that time. That means, that as soon as you have a threat in any corner of the world, you are supposed to apply for a protection visa? But yes, when I got to know about the cancellation of my 457-spouse-visa, I applied for protection, as the situation back in India forced me to do so and also the condition of Bridging visa E.

   I would like to ask you to please still grant me a protection visa, so that I can come back to Australia and live a peaceful life. I have worked, paid taxes and followed every rule while being in Australia, I therefore kindly request you to forgive my mistake in exiting Australia. Please also go through my letter sent to [Mr A] on July 30th, 2019 to get an overview on my entire situation. Looking forward to a positive outcome for me.

6. The Tribunal is satisfied from the circumstances set out above that the applicant is not in Australia and does not hold a visa that enables him to re-enter Australia. Therefore, the applicant does not satisfy the requirements of s.36(2) and cannot be granted a protection visa.  The Tribunal does not have any discretion in this matter.

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

   DECISION

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

   Paul Windsor
   Member