2100431 (Refugee)

[2022] AATA 3943

2100431 (Refugee) [2022] AATA 3943 (19 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2100431

COUNTRY OF REFERENCE:                   India

MEMBER:Mr S Norman

DATE:19 September 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 19 September 2022 at 9:53am

CATCHWORDS

REFUGEE – Protection visa – India – applicants not in Australia – outside of migration zone – 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 dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Home Affairs on 23 December 2020 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act). The applicants, who claim to be citizens of India, applied for the visas on 31 May 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 applicants are not in Australia. It appears the applicants departed Australia separately, on [date] October 2021 and [date] February 2022. The Tribunal wrote to the applicants advising that its records showed they are not in Australia and therefore could not be granted protection visas and inviting the applicants to comment on the information. The applicants were requested to respond in writing to the Tribunal by 28 July 2022. At the time and date of this decision, no response had been received.

6. The Tribunal is satisfied from the circumstances set out above that the applicants are not in Australia. Therefore, the applicants do not satisfy the requirements of s 36(2) and cannot be granted protection visas.

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

   DECISION

8. The Tribunal affirms the decision not to grant the applicants protection visas.

   Mr S Norman
   Member