2109138 (Refugee)

[2023] AATA 613

2109138 (Refugee) [2023] AATA 613 (13 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2109138

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Peter Papadopoulos

DATE:13 March 2023

PLACE OF DECISION:  Sydney

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

Statement made on 13 March 2023 at 4:29pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – applicant left Australia – no response to tribunal’s invitation to comment – not necessary to consider substantive case – decision under review affirmed

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

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 24 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, applied for the visa on 14 May 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 held by the Department of Home Affairs indicate that the applicant is not in Australia. It appears that he left Australia [in] January 2023. On 15 February 2023, the Tribunal wrote to the applicant advising that these movement records indicated that he is currently outside Australia and did not hold a visa that enabled him to return to Australia which meant that he could not be granted a protection visa. The applicant was informed that if he could not comment on or respond to this information in writing by 1 March 2023, he may ask the Tribunal for an extension of time in which to provide the written comments or response.

6. The Tribunal has not received any comment or response from the applicant.

7. 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) of the Act 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.

   Peter Papadopoulos
   Member