2017940 (Refugee)

[2024] AATA 3785

2017940 (Refugee) [2024] AATA 3785 (28 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2017940

COUNTRY OF REFERENCE:                   Indonesia

MEMBER:Alison Murphy

DATE:28 June 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 28 June 2024 at 4:20pm

CATCHWORDS

REFUGEE – protection visa – Indonesia – applicant left Australia – 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 7 December 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant is a citizen of Indonesia and he applied for the visa on 19 August 2020.

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] October 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.

6. The applicant responded by stating that he had urgent family reasons for returning to Indonesia in October 2023 and at this time he is unable to return to Australia. He expressed his strong desire to return to Australia and that his visa application could continue. At a hearing on 28 June 2024 he confirmed that he had departed Australia and did not have a visa allowing him to return. He told the Tribunal that he had not wanted to leave Australia, but that he had to return to Indonesia as his wife was unwell. He hoped to return to the future by whatever means possible.

7. The Tribunal accepts the applicant left Australia for family reasons and that he wishes to return in the future. However it is clear 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.

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.

   Alison Murphy
   Member