2004608 (Refugee)

[2022] AATA 3425

2004608 (Refugee) [2022] AATA 3425 (15 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2004608

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 5:27pm

CATCHWORDS

REFUGEE – protection visa – Malaysia – No response to invitation to comment letter – applicant departed Australia – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 36, 65, 424A

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 Minister 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 26 October 2019. On 27 February 2020 the delegate refused to grant the protection visa. On 8 March 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. 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.

5. 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.

6. According to the applicant’s protection visa application form, the applicant is a male citizen of Malaysia. At the time the protection visa application was lodged on 26 October 2019, the applicant was in Australia. Department records demonstrate that subsequent to the review application being made on 8 March 2020, the applicant departed Australia [in] November 2021.

7. The Tribunal wrote to the applicant under s 424A of the Act and invited his comment on or respond to the fact that he could not be granted the protection visa because he was not in Australia. The applicant did not comment on or respond to the information. This resulted in the Tribunal no longer being required to invite the applicant to appear at a Tribunal hearing.

8. 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.

    Nathan Goetz
    Member