2012525 (Refugee)

[2024] AATA 1491

2012525 (Refugee) [2024] AATA 1491 (29 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2012525

COUNTRY OF REFERENCE:                   China

MEMBER:Samira Kamandi

DATE:29 May 2024

PLACE OF DECISION:  Perth

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

Statement made on 29 May 2024 at 3:18pm

CATCHWORDS
REFUGEE – protection visa – China – 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 3 August 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 China, applied for the visa on 2 April 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) of the Act a visa may be granted only if the decision maker is satisfied that the prescribed criteria for the visa have been satisfied.

4. Section 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. Information available to the Tribunal indicate that the applicant is not in Australia. The applicant left Australia [in] October 2023.

6. The Tribunal wrote to the applicant advising that the applicant appeared to have departed Australia and therefore could not be granted a protection visa. The applicant was invited to comment on that information and requested a response from the applicant by 14 May 2024. The applicant was also advised that if no response was received, the Tribunal may make a decision on the review application without taking any further action. To date, no response has been received from the applicant.

7. The Tribunal is satisfied that the applicant is not in Australia. Therefore, the applicant does not satisfy the requirements of s 36(2) of the Act 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.

   Samira Kamandi
   Member