2101600 (Refugee)

[2023] AATA 3321

2101600 (Refugee) [2023] AATA 3321 (13 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2101600

COUNTRY OF REFERENCE:                   India

MEMBER:L. Symons

DATE:13 September 2023

PLACE OF DECISION:  Sydney

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

Statement made on 13 September 2023 at 10:16am

CATCHWORDS

REFUGEE – protection visa – India – 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 decisions made by a delegate of the Minister for Home Affairs on 25 January 2021 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 21 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 applicants are not in Australia. It appears that the first and fourth-named applicants left Australia [in] March 2023 and the second and third-named applicants left Australia [in] April 2023. 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 in writing on or before 1 March 2023. The Tribunal did not receive a response.

6. The Tribunal is satisfied from the circumstances set out above that the applicants are not in Australia. Therefore, they 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.

   L. Symons
   Member