2108539 (Refugee)

[2022] AATA 4363

2108539 (Refugee) [2022] AATA 4363 (19 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2108539

COUNTRY OF REFERENCE:                   Fiji

MEMBER:Genevieve Hamilton

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 4:40pm

CATCHWORDS  
REFUGEE – protection visa – Fiji – applicant departed Australia – decision under review affirmed 

LEGISLATION 
Migration Act 1958 (Cth), 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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 21 June 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant applied for the visa on 17 July 2017.

2. 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.

3. 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.

4. Movement records indicate that the applicant is not in Australia. It appears that he left Australia [in] November 2021. 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 reply to the letter.

5. 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.

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

   DECISION

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

   Genevieve Hamilton
   Member