2110964 (Refugee)

[2022] AATA 4316

2110964 (Refugee) [2022] AATA 4316 (19 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2110964

COUNTRY OF REFERENCE:                   China

MEMBER:Joseph Lindsay

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 2:36pm

CATCHWORDS  
REFUGEE – protection visa – China – 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

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 27 July 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 China, applied for the visa on 21 December 2017.

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] December 2021 on a bridging visa (Class WA subclass 010) which ceased on that date. The Tribunal wrote to the applicant on 14 July 2022 advising that its records showed that she is not in Australia and therefore could not be granted a protection visa and inviting the applicant to comment on the information by 28 July 2022.  The Tribunal did not receive a response to its invitation.

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.

   Joseph Lindsay
   Member