2001393 (Refugee)

[2023] AATA 4684

2001393 (Refugee) [2023] AATA 4684 (30 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2001393

COUNTRY OF REFERENCE:                   Thailand

MEMBER:Sean Baker

DATE:30 October 2023

PLACE OF DECISION:  Sydney

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

Statement made on 30 October 2023 at 11:39am

CATCHWORDS

REFUGEE – protection visa – Thailand – 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 21 January 2020 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 Thailand, applied for the visa on 8 April 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 on [in] January 2023. The Tribunal wrote to the applicant 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.

6. The applicant responded, stating that he had had to return to Thailand after his [relative] was killed and he wished to fight for his family against powerful people despite the risk to himself.

7. A hearing was set down for 27 October 2023 at 1pm, the applicant did not appear. After the hearing, at 3.29pm local time the tribunal received an email from the applicant claiming he had been in hospital and had been unconscious at the time of the hearing.

8. The Tribunal has considered this and does not accept, on the evidence, that the applicant had a reasonable reason for not appearing. He has provided no detail about why he was at the hospital nor any documents he might have been able to obtain from the hospital to evidence his claim. Having regard to this, and to the fact that the applicant is outside Australia and that this is a fundamental requirement for the consideration of the visa, the Tribunal has decided not to offer the applicant a further hearing and has proceeded to decide the case on the material. 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.

    Sean Baker
    Member