2117204 (Refugee)

[2023] AATA 4803

2117204 (Refugee) [2023] AATA 4803 (30 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Dr Tam Van Nguyen (MARN: 0743595)

CASE NUMBER:  2117204

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Sean Baker

DATE:30 October 2023

PLACE OF DECISION:  Sydney

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

Statement made on 30 October 2023 at 12:05pm

CATCHWORDS

REFUGEE – protection visa – Vietnam – applicant returned to home country for family reasons – no substantive response to tribunal’s invitation to comment or appearance at hearing – not necessary to consider substantive case – 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 November 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 Vietnam, applied for the visa on 24 November 2020.

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] March 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 inviting the applicant to comment on the information.

6. The applicant’s representative responded stating that the applicant had returned to Vietnam for family reasons. The tribunal set down a hearing on 27 October 2023 for the applicant but the applicant did not appear. Having regard to the issue in dispute and the response from the representative the Tribunal has proceeded to a decision without taking any further steps to allow the applicant to appear.

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) 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.

   Sean Baker
   Member