2015593 (Refugee)

[2022] AATA 836

2015593 (Refugee) [2022] AATA 836 (15 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:   2015593

HOME AFFAIRS REFERENCE(S):          BCC2019/3089523

MEMBER:Mark O'Loughlin

DATE:  15 February 2022

PLACE OF DECISION:  Adelaide

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

Statement made on 15 February 2022 at 3:21pm

CATCHWORDS
REFUGEE – protection visa – China – applicant left Australia – no response to tribunal’s invitation to comment – 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. 1. This is an application for review of decisions made by a delegate of the Minister for Home Affairs on 21 October 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 18 June 2019.

1. For the following reasons, the Tribunal has decided to affirm the decision under review.

   CONSIDERATION OF CLAIMS AND EVIDENCE

2. 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.

3. 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.

4. Movement records indicate that the applicants are not in Australia. It appears that they left Australia [in] September 2021. The Tribunal wrote to the applicants advising that its records showed that they are not in Australia and therefore could not be granted protection visas and inviting the applicants to comment on the information. The applicant did not respond.

5. 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.

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

   DECISION

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

   Mark O'Loughlin
   Member