2003703 (Refugee)

[2024] AATA 1835

2003703 (Refugee) [2024] AATA 1835 (31 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2003703

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Bryn Butler

DATE:31 May 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 31 May 2024 at 11:32am

CATCHWORDS

REFUGEE – Protection visa – Malaysia – 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 Immigration and Border Protection on 16 November 2017 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 Malaysia, applied for the visa on 4 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 on [date] November 2023. On 30 April 2024, the Tribunal wrote to the applicant, pursuant to s 424A of the Act, 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 Tribunal has not received a response to its correspondence. In these circumstances, the Tribunal has decided to proceed to decision without taking any further action to obtain the applicant's views on the information, and not invite the applicant to appear before the Tribunal to give evidence and present arguments.[1]

   [1] Pursuant to ss 424C(2) and 425(2)(c) of the Act.

6. 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.

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.

   Bryn Butler
   Member