2004297 (Refugee)

[2020] AATA 5737

2004297 (Refugee) [2020] AATA 5737 (7 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2004297

COUNTRY OF REFERENCE:                   China

MEMBER:Luke Hardy

DATE:7 December 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 07 December 2020 at 10:37am

CATCHWORDS

REFUGEE – protection visa – China – 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 dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration and Border Protection on 1 November 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act). The applicants, who claim to be citizens of China, applied for the visas on 16 July 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 applicants are not in Australia. It appears that they both left Australia [in] March 2020. The Tribunal wrote to the applicants on 17 July 2020 advising them that its records showed that they are not in Australia and therefore could not be granted protection visas. The Tribunal invited the applicants to comment on the information by 31 July 2020. The Tribunal has not received any response.

6. The Tribunal is satisfied in the circumstances set out above that the applicants are not in Australia. Therefore, the applicants do not satisfy the requirements of s.36(2) and cannot be granted protection visas.

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

   DECISION

8. The Tribunal affirms the decision not to grant the applicants protection visas.

   Luke Hardy
   Member