2102845 (Refugee)

[2022] AATA 3891

2102845 (Refugee) [2022] AATA 3891 (19 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2102845

COUNTRY OF REFERENCE:                   India

MEMBER:Nathan Goetz

DATE:19 September 2022

PLACE OF DECISION:  Sydney

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

Statement made on 19 September 2022 at 3:42pm

CATCHWORDS

REFUGEE – protection visa – India – applicant left Australia – decision under review affirmed

LEGISLATION

Migration Act 1958, 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 under s 65 of the Migration Act 1958 (Cth) (the Act) by a delegate of the Minister to refuse to grant the applicant a protection visa.

   BACKGROUND

2. The applicant identifies as [an age]-year-old male citizen of India.

3. [In] October 2017 the applicant arrived in Australia holding a visitor visa.

4. On 13 December 2017 the applicant applied for the protection visa. On 24 February 2021 the delegate refused to grant the protection visa.

5. On 8 March 2021 the applicant applied to the Tribunal for review of the decision.

6. [In] September 2021 the applicant departed Australia and has not returned.

   CRITERIA FOR THE VISA

7. 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.

8. 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.

   CONSIDERATION

9. On 14 July 2022 the Tribunal wrote to the applicant under s 424A of the Act and invited him to comment on or respond to the fact that the applicant was outside Australia and therefore unable to meet the requirements to be granted the protection visa. The letter directed the applicant to respond to the information in writing by 28 July 2022. The applicant did not respond to the information, meaning that the Tribunal was no longer obligated to invite the applicant to appear at a Tribunal hearing: s 425(3) of the Act.

   FINDINGS AND REASONS

10. For the following reason, the Tribunal has decided to affirm the decision under review.

11. 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.

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

    DECISION

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

    Nathan Goetz
    Member