2013320 (Refugee)

[2022] AATA 3418

2013320 (Refugee) [2022] AATA 3418 (16 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2013320

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Sheridan Lee

DATE:16 August 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 16 August 2022 at 1:43pm

CATCHWORDS

Refugee – Protection visa – Malaysia – applicant departed Australia – no response to invitation to comment letter – 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 27 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 Malaysia, applied for the visa on 12 November 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 departed Australia [in] November 2021. The Tribunal wrote to the applicant on 13 July 2022 to advise that Departmental records showed that he is not in Australia and therefore could not be granted a protection visa. The applicant was invited to comment on the information. At the date of this decision, no comment or response had been received.

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.

   Sheridan Lee
   Member