2009486 (Refugee)

[2023] AATA 4537

2009486 (Refugee) [2023] AATA 4537 (30 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2009486

COUNTRY OF REFERENCE:                   Indonesia

MEMBER:Sean Baker

DATE:30 October 2023

PLACE OF DECISION:  Sydney

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

Statement made on 30 October 2023 at 1:05pm

CATCHWORDS

REFUGEE – protection visa – Indonesia – applicant left Australia – decision under review affirmed

LEGISLATION

Migration Act 1958, 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 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 5 June 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 Indonesia, applied for the visa on 17 October 2019.

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] March 2023. 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 responded, stating that he had returned to Indonesia because his father was ill and had now passed away.

7. The applicant was invited to a hearing on Friday 27 October 2023 at 2pm by video. The applicant did not appear at the time scheduled. The applicant responded at 3.49pm and 3.58pm stating that he had missed the email and had tried to join the Teams meeting with no success, that he needed more time for the hearing and to speak about his problem.

8. The Tribunal considered these responses but does not accept that the applicant has provided a reasonable excuse for not attending the hearing, with little detail about why he missed the email. Having regard to this and the issue in concern, the tribunal has decided not to provide a further opportunity for the applicant to appear and has decided to proceed to make a decision.

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.

    Sean Baker
    Member