2108735 (Refugee)

[2024] AATA 2551

2108735 (Refugee) [2024] AATA 2551 (25 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2108735

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Rosa Gagliardi

DATE:25 June 2024

PLACE OF DECISION:  Australian Capital Territory

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

Statement made on 25 June 2024 at 4:34pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – applicant left Australia – response to invitation to comment on information seeking advice on accessing superannuation – not tribunal’s responsibility to advise – no appearance at hearing – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36(2), 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 17 June 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 Malaysia (a matter the Tribunal accepts) applied for the visa on 23 February 2021.

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 she left Australia [in] July 2023. The Tribunal wrote to the applicant advising that its records showed that she is not in Australia and therefore could not be granted a protection visa and invited the applicant to comment on the information.

6. In response to the Tribunal’s communication the applicant responded on 6 May 2024 stating that she was now back in Malaysia and would not be returning for a period of time.  She also sought advice about whether she could obtain her superannuation without a visa.

7. The Tribunal scheduled a hearing on 25 June 2024 to go through the consequences of s.36(2) with the applicant, but she did not respond to the hearing invitation.  The Tribunal attempted to call her, but she did not respond.  The Tribunal notes that several SMS messages were also sent to her to remind her of the impending hearing.  The Tribunal is satisfied that it has done all it reasonably can to engage with the applicant about why a protection visa cannot be granted under s.36(2) and proceeds to decision on the information available.

8. At a hearing the Tribunal would have explained to the applicant that in terms of any superannuation she is owed in Australia, she needs to liaise with her former employer(s) to make appropriate arrangements with them about the possibility of accessing her superannuation.  It is not within the Tribunal’s remit to advise on such matters.

9. 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.

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

    DECISION

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

    Rosa Gagliardi
    Member