2017776 (Refugee)

[2024] AATA 2041

2017776 (Refugee) [2024] AATA 2041 (30 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2017776

COUNTRY OF REFERENCE:                   China

MEMBER:R Guemy

DATE:30 May 2024

PLACE OF DECISION:  Sydney

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

Statement made on 30 May 2024 at 11:05am

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

LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 424A, 425

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 18 November 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 China, applied for the visa on 24 October 2017.

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] December 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 applicants did not respond to or comment on to the adverse information in the Tribunal’s letter.

6. In light of the applicant’s failure to give comment or response to the Tribunal’s s 424A letter, the Tribunal has chosen to make a decision on the review without taking any further action to obtain the applicant's views on the information. The applicants are also no longer entitled to appear before the Tribunal (see s 425(3)).

7. Although the Tribunal retains a discretion to invite the applicants to a hearing, given that they are no longer in Australia and have presented no information or evidence to the Tribunal that they intend to return to Australia in the near future or that they have a valid visa that would give them permission to do so, the Tribunal has decided not to invite them to a hearing as it would not be an appropriate use of the Tribunal’s limited resources given that the applicants do not presently appear to able to meet a critical requirement for the grant of the protection visa.

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.

    R Guemy
    Member