2102922 (Refugee)

[2024] AATA 1776

2102922 (Refugee) [2024] AATA 1776 (30 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Bimal Bhattarai (MARN: 9685736)

CASE NUMBER:  2102922

COUNTRY OF REFERENCE:                   Nepal

MEMBER:Xanthe Emery

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 9:14am

CATCHWORDS

REFUGEE – protection visa – Nepal – applicant left Australia with no visa to return – no response to invitation to comment and decision made without invitation to appear – not necessary to consider substantive case – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 36(2), 65(1), 424A

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 25 February 2021 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 a citizen of Nepal, applied for the visa on 27 March 2018.

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 before me indicate that the applicant is not in Australia and that he left Australia [in] November 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 applicant did not respond to this invitation and has made no further contact with the Tribunal.

6. As the applicant failed to respond to an invitation under s 424A of the Act within the prescribed period, I may make a decision on the review without inviting him to appear before me at a hearing. In this case, the information before me indicates that the applicant departed Australia in November 2023 and that he does not have a visa enabling him to return. He cannot be granted a protection visa while he is outside Australia. In these circumstances, I consider it is appropriate to make a decision on the review without inviting him to a hearing.

7. I am satisfied on the evidence before me that the applicant is not in Australia. Therefore, he 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.

   Xanthe Emery
   Member