2007695 (Refugee)

[2023] AATA 1295

2007695 (Refugee) [2023] AATA 1295 (17 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2007695

COUNTRY OF REFERENCE:                   China

MEMBER:L Symons

DATE:17 March 2023

PLACE OF DECISION:  Sydney

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

Statement made on 17 March 2023 at 10:09am

CATCHWORDS
REFUGEE – protection visa – China – applicant left Australia – invitation to comment sent to email address provided undeliverable – not necessary to consider substantive case – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36(2), 65(1)

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 for Home Affairs on 8 April 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 China, applied for the visa on 12 September 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 she left Australia [in] November 2022. The Tribunal wrote to the applicant on 15 February 2023 advising that its records showed that she is not in Australia and therefore could not be granted a Protection visa and inviting her to comment on the information in writing on or before 1 March 2023.

6. On 16 February 2023, the Tribunal received a return to sender email which indicated that the email to the applicant was undeliverable as the recipient address was rejected. The applicant’s email address is the address for correspondence provided by her and she has not provided the Tribunal with a new address for correspondence since leaving Australia. The Tribunal is satisfied that reasonable steps have been taken to notify the applicant.

7. 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.

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

   DECISION

9. The Tribunal affirms the decision not to grant the applicant a Protection visa.

   L Symons
   Member