2106365 (Refugee)

[2022] AATA 4317

2106365 (Refugee) [2022] AATA 4317 (19 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2106365

COUNTRY OF REFERENCE:                   China

MEMBER:Brendan Darcy

DATE:19 September 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 19 September 2022 at 4:57pm

CATCHWORDS

REFUGEE – protection visa – China – 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 29 April 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 the People’s Republic of China (China), applied for the visa on 30 March 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 applicant is not in Australia. It appears that he left Australia [in] January 2022. 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 Tribunal did not receive any submissions or responses, either from the applicant or on behalf of the applicant, right up to the time of making this decision.

6. 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.

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

   DECISION

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

   Brendan Darcy
   Member