2014416 (Refugee)

[2024] AATA 1920

2014416 (Refugee) [2024] AATA 1920 (3 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Ramtin Diznab (MARN: 0957160)

CASE NUMBER:  2014416

COUNTRY OF REFERENCE:                   Philippines

MEMBER:James Horsley

DATE:3 June 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 03 June 2024 at 10:56am

CATCHWORDS
REFUGEE – protection visa – Philippines – applicant left Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 424A

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 7 September 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 the Philippines, applied for the visa on 16 August 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, having departed the country [in] September 2023. On 1 May 2024, the Tribunal wrote to the applicant advising that its records showed that they are not in Australia and therefore could not be granted a protection visa. The Tribunal invited the applicant to comment on this information by 15 May 2024.

6. The Tribunal did not receive a response from the applicant within the prescribed period. As the applicant failed to respond to an invitation under s 424A of the Act within the prescribed period, the Tribunal may make a decision on the review without inviting them to a hearing. On 17 May 2024, the Tribunal received a response from the applicant by email, via their representative. In the email, the applicant confirms they departed Australia in September 2023 and do not currently hold a visa that would allow them to return to Australia. The applicant stated they applied for a Temporary Skill Shortage visa (subclass 482). Rather than requesting the Tribunal to delay the decision until any return to Australia, the applicant requested the Tribunal to make a decision as soon as possible.

7. In this case, the information before the Tribunal indicates the applicant departed Australia [in] September 2023. At the time of their departure, they did not hold a visa that would allow them to return to Australia, and they cannot be granted a protection visa while outside Australia. In these circumstances, the Tribunal considers it appropriate to make a decision on the review without inviting the applicant to a hearing.

8. 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.

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

   DECISION

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

    James Horsley
    Member