2008939 (Refugee)

[2024] AATA 4080

2008939 (Refugee) [2024] AATA 4080 (16 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2008939

COUNTRY OF REFERENCE:                   Iran

MEMBER:Frances Simmons

DATE:16 September 2024

PLACE OF DECISION:  Sydney

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

Statement made on 16 September 2024 at 2:31pm

CATCHWORDS
REFUGEE – protection visa – Iran – child born in Australia and now Australian citizen – no withdrawal of application for review – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36(2), 65(1), 424A, 424C(2), 425(2)(c)

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. An application has been lodged for review of a decision of a delegate of the Minister for Home Affairs, dated 26 September 2018, to refuse to grant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant applied for the visa on 27 September 2017.On 1 May 2020 the Department of Home Affairs re-notified the applicant of its 2018 decision and on 28 May 2020 the applicant sought review of this decision.

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. Subsection 36(2) of the Act relevantly 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 can only be granted if the applicant is a non-citizen. Indeed, the object of the Act is to regulate the presence in Australia of non-citizens, and visas cannot be granted to Australian citizens (see s 4 and s 29 of the Act). The issue in this case is whether the applicant is now an Australian citizen.

5. The applicant in this case is a child who was born in Australia on [Date]. According to the Department of Home Affairs’ records (ICSE), the applicant acquired Australian citizenship [in] July 2022 and remains an Australian citizen. The Tribunal wrote to the applicant on 16 April 2024 to ask whether she wanted to continue with the review application given the information before the Tribunal indicated that she had become an Australian citizen. The letter stated that if the applicant decided she did not want to continue with the application for review, she should complete a withdrawal form as possible and provided her with the relevant withdrawal form. The Tribunal also noted that a post decision fee is applicable where a decision is affirmed by the Tribunal. No response was received.

6. On 9 August 2024, the applicant’s representative advised the Tribunal that they no longer represent the applicant. The Tribunal acknowledged this correspondence and noted that, as they were the applicant’s authorised recipient, the Tribunal was required by law to continue to send them correspondence in connection with the review unless and until the applicant advised otherwise. The Tribunal requested that the applicant complete a change of contact details form or an appointment of representative/appointment of authorised recipient form. At the time of this decision, the applicant has not updated her details with the Tribunal.

7. After the case was constituted to a Tribunal member, on 19 August 2024 the Tribunal wrote to the applicant pursuant to s 424A and asked her to comment on or respond to the information that she had become an Australian citizen and that she cannot be granted a visa as she is an Australian citizen. On the same day, a solicitor at the same firm of the solicitor who is authorised recipient in this matter forwarded the Tribunal an email from the applicant’s mother sent to the authorised recipient which stated the applicant had become an Australian citizen and requested that her daughter’s date of birth be removed from her file. The Tribunal does not consider the email communications from the solicitor at the firm of the authorised recipient to be a comment or response from the applicant for the purposes of s 424C(2).

8. Noting the applicant is a minor, the Tribunal made further attempts to provide the applicant (via her mother) with the change of contact details form and the form to withdraw the review application. These attempts were unsuccessful. The Tribunal has not received a withdrawal form in response to its correspondence. In these circumstances the Tribunal has decided to proceed to decision pursuant to s 424C(2) and s 425(2)(c) of the Act.

9. The Tribunal is satisfied on the evidence before it that the applicant is now an Australian citizen. It follows that the applicant does not satisfy the requirements of s 36(2), and cannot be granted a protection visa.

   DECISION

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

    Frances Simmons
    Member