2116973 (Refugee)

[2023] AATA 4788

2116973 (Refugee) [2023] AATA 4788 (13 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2116973

COUNTRY OF REFERENCE:                   China

MEMBER:Wendy Banfield

DATE:13 August 2023

PLACE OF DECISION:  Canberra

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 13 September 2023 at 12:37pm

CATCHWORDS
REFUGEE – protection visa – China – applicants departed Australia – no response to 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 decisions made by a delegate of the Minister for Home Affairs on 10 November 2021 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act). The applicants, who claim to be citizens of China, applied for the visas on 1 August 2019.

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 applicants are not in Australia. It appears that they left Australia [in] September 2023. The Tribunal wrote to the applicants advising that its records showed that they are not in Australia and therefore could not be granted protection visas and inviting the applicants to comment on the information. The applicants did not reply to the invitation to comment.

6. The Tribunal is satisfied from the circumstances set out above that the applicants are not in Australia. Therefore, the applicants do not satisfy the requirements of s 36(2) and cannot be granted protection visas.

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

   DECISION

8. The Tribunal affirms the decision not to grant the applicants protection visas.

   Wendy Banfield
   Member