2112789 (Refugee)

[2023] AATA 1996

2112789 (Refugee) [2023] AATA 1996 (28 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2112789

COUNTRY OF REFERENCE:                   China

MEMBER:Christine Cody

DATE:28 March 2023

PLACE OF DECISION:  Sydney

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

Statement made on 28 March 2023 at 9:10am

CATCHWORDS

REFUGEE – protection visa – China – applicant left Australia – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 36, 65, 424A

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 September 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 22 August 2018.

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 departed Australia. The Tribunal wrote to the applicant pursuant to s.424A of the Act on 16 February 2023 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. The applicant has not responded to the Tribunal to date.

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.

   Christine Cody
   Member