2008782 (Refugee)

[2022] AATA 5221

2008782 (Refugee) [2022] AATA 5221 (21 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2008782

COUNTRY OF REFERENCE:                   Iraq

MEMBER:Luke Hardy

DATE:21 September 2022

PLACE OF DECISION:  Sydney

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

Statement made on 21 September 2022 at 1:41pm

CATCHWORDS  
REFUGEE – protection visa – Iraq – applicant departed Australia – decision under review affirmed 

LEGISLATION 
Migration Act 1958 (Cth), 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 Home Affairs on 28 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 Iraq, applied for the visa on 21 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 he left Australia [in] May 2021. The Tribunal wrote to the applicant 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.

6. The applicant replied by email on 22 August 2022, saying he had left Australia for Iraq to attend to family health matters knowing that his bridging visa would not allow re-entry. He said he no longer had a valid passport but hoped to obtain one so that he could apply for a new visa for Australia, re-enter and resume his protection visa application.

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.

   Luke Hardy
   Member