2003683 (Refugee)

[2022] AATA 3416

2003683 (Refugee) [2022] AATA 3416 (15 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2003683

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Nathan Goetz

DATE:15 August 2022

PLACE OF DECISION:  Sydney

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

Statement made on 15 August 2022 at 4:59pm

CATCHWORDS

REFUGEE – protection visa – Malaysia – applicant departed 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 dependants

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the protection visa on 6 August 2018. On 31 January 2020 the delegate refused to grant the visa. On 25 February 2020 the applicant applied to the Tribunal for review of the decision.

3. For the following reasons, the Tribunal has decided to affirm the decision under review.

   CONSIDERATION

4. The applicant identifies as a female citizen of Malaysia. She arrived in Australia on [date] October 2017 holding an electronic travel authority visa. That visa expired on [date] January 2018.

5. In the protection visa application form, she declared that she was presently located in Australia.

6. Under s 65(1) of the Act a visa may be granted only if the decision maker is satisfied that the prescribed criteria for the visa have been satisfied.

7. 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.

8. Department records demonstrate that the applicant left Australia on [date] March 2022.

9. The Tribunal wrote to the applicant under s 424A of the Act to invite her comment or response to the fact that she was not in Australia and therefore could not be granted the visa. The applicant did not respond to this letter. The failure to respond to the letter meant that the Tribunal was no longer required to invite the applicant to appear at a Tribunal hearing.

10. 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.

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

    DECISION

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

    Nathan Goetz
    Member