2012369 (Refugee)

Case [2024] AATA 1989

2012369 (Refugee) [2024] AATA 1989 (30 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2012369

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Sydelle Muling

DATE:30 May 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 30 May 2024 at 9:25am

CATCHWORDS
REFUGEE – protection visa – Vietnam – applicant left Australia – no response to invitation to comment – 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 22 July 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 30 September 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] September 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. The Tribunal did not receive a response from the applicant.

  6. 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.

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

    DECISION

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

    Sydelle Muling
    Member


Details
AGLC
2012369 (Refugee) [2024] AATA 1989
Case
[2024] AATA 1989
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant from Vietnam. The dispute centred on whether the applicant met the eligibility criteria for the visa, specifically the requirement of being present in Australia.

The Tribunal was required to determine whether the applicant satisfied the criterion that they be a non-citizen in Australia, as stipulated by section 36(2) of the relevant Act, for the grant of a protection visa. This involved assessing the applicant's physical presence within Australia at the time of the decision.

The Tribunal's reasoning was based on movement records indicating the applicant had departed Australia in September 2023. Consequently, the Tribunal determined that the applicant was not in Australia and therefore did not meet the fundamental criterion under section 36(2). The Tribunal had invited the applicant to comment on this information, but no response was received. As the applicant failed to satisfy this essential requirement, the Tribunal concluded it was unnecessary to consider the substantive grounds of the protection claim. The Tribunal affirmed the decision not to grant the applicant a protection visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has decided to affirm the decision under review.CONSIDERATION OF CLAIMS AND EVIDENCE 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. 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. Movement records indicate that the applicant is not in Australia. It appears that he left Australia [in] September 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. The Tribunal did not receive a response from the applicant. 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. Having reached this conclusion, it is not necessary to consider the applicant's substantive case for the grant of the visa.DECISION The Tribunal affirms the decision not to grant the applicant a protection visa.Sydelle MulingMember

Decision

Reasons for decision

Having reached this conclusion, it is not necessary to consider the applicant's substantive case for the grant of the visa.DECISION The Tribunal affirms the decision not to grant the applicant a protection visa.Sydelle MulingMember

Ratio Decidendi

Legal Principle Established

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