1932968 (Refugee)

[2020] AATA 2254

1932968 (Refugee) [2020] AATA 2254 (12 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1932968

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Mary Urquhart

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 2:04pm

CATCHWORDS

REFUGEE – protection visa – Malaysia – applicant left Australia – 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 6 November 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 Malaysia, applied for the visa on 25 September 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 applicant is not in Australia. It appears that he left Australia [in] April 2020. The Tribunal wrote to the applicant on 30 April 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 and to do so by 14 May 2020.

6. The Tribunal receved a response from the applicant on 30 April 2020. The applicant explained that they had completed various Certificates whilst studying in Australia and withdrew whilst studying a [specified course]. The applicant stated he was only able to work part-time which was financially difficult. The applicant explained that they were refused a Bridging Visa A. The applicant left Australia and returned to Malaysia. The applicant states a further reason for returning home was that his sister was sick. On return to Malaysia the applicant said the economy there “had dropped” and that the “virus thing” was happening.

7. The Tribunal has carefully considered the applicant’s response. The Tribunal notes significantly the applicant agrees they are outside Australia and are without a valid visa to return to Australia.

8. Accordingly 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.

    Mary Urquhart
    Member