2008338 (Refugee)

[2024] AATA 1777

2008338 (Refugee) [2024] AATA 1777 (29 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Dr Ngo Tung Bao (MARN: 0006620)

CASE NUMBER:  2008338

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Siran Nyabally

DATE:29 May 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 29 May 2024 at 11:28am

CATCHWORDS
REFUGEE – protection visa – Vietnam – applicant left Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), 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 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 Home Affairs on 15 May 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 Vietnam, applied for the visa on 23 November 2018.

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] October 2023 as the holder of a Bridging visa C.

6. The Tribunal wrote to the applicant’s representative pursuant to s 424A of the Act, advising that its records showed that she is not in Australia and did not hold a visa that would allow her to return to Australia, and therefore she could not be granted a protection visa. The applicant was invited to comment on the information by 14 May 2024.

7. No response was received by or on behalf of the applicant.

8. As the applicant failed to respond to an invitation under s 424A within the prescribed period, the Tribunal may make a decision on the review without inviting the applicant to a hearing. In this case the information before the Tribunal indicates the applicant departed Australia more than 7 months ago. At the time of her departure she did not hold a visa that would allow her to return to Australia, ands he cannot be granted the protection visa while she is outside Australia. In these circumstances the Tribunal considers it appropriate to make a decision on the review without inviting the applicant to a hearing.

9. 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.

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

    DECISION

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

    Siran Nyabally
    Member