2118673 (Refugee)

[2023] AATA 1998

2118673 (Refugee) [2023] AATA 1998 (20 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Md Nurul Huq

CASE NUMBER:  2118673

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Nathan Goetz

DATE:20 April 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 20 April 2023 at 12:08pm

CATCHWORDS

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

LEGISLATION

Migration Act 1958, ss 36, 65, 424-426

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 under s 65 of the Migration Act 1958 (Cth) (the Act) to refuse to grant the applicant a protection visa.

2. The applicant was represented in the review by registered migration agent 0005656.

   BACKGROUND

3. The applicant identifies as a male citizen of Pakistan. He last arrived in Australia [ion] February 2019 holding a transit visa. The visa ceased [later in] February 2019.

4. On 5 February 2019 the applicant applied for the protection visa. On 26 November 2021 the delegate refused to grant the visa. On 8 December 2021 the applicant applied to the Tribunal for review of the decision.

5. [In] July 2022 the applicant departed Australia and has not returned.

   CONSIDERATION OF EVIDENCE

6. 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.

7. 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.

8. On 16 February 2023 the Tribunal wrote to the applicant under s 424A of the Act and raised the fact that the applicant was not in Australia as a reason or part of the reason for affirming the decision under review. This meant that the applicant could not meet the requirements for the protection visa. The applicant was invited to comment on or respond to this information in writing by 2 March 2023.

9. In response, the migration agent responded as follows:

10. “I thank you for your email dated 16 February 2023 . However, please be advised that I have tried my best to contact the above mentioned protection visa review applicant [name] by calling him through his available mobile number on many occasions and the mobile automated massage was -the phone is currently disconnected. Being disappointed, I have sent him an email on 16 February and that email was responded by [the applicant] on the 17th of February 2023 and on the same day I have sent him another email explaining his circumstance with the tribunal and requested him to send an email from his email ID allowing me to withdraw his pending Tribunal application. He did not respond to my email anymore and also did not pick up my phone when I called him on WhatsApp on many occasions as per his indication, however he did not attend to my calls. Please find attached copies of email correspondences.

11. In light of the above, I would request the Tribunal to take any such appropriate measures to resolve the issue as his email correspondence clearly mentions that he has voluntarily left for his country of origin-Pakistan and also he has acknowledged that he is currently in Pakistan when he has no forwarding visa to return back to Australia whereas the Section 36(2) of the Migration Act requires that the applicant for a protection visa must be a non-citizen in Australia. This means that a protection visa can only be granted if the applicant is in Australia. Therefore, I leave it to the Honourable Tribunal to take whatever the measure deem appropriate and thus oblige thereby.

12. Please do not hesitate to contact the undersigned if I can be of any help with regard to this escalated issue.”

13. The Tribunal has a statutory obligation under s 425 of Act to invite an applicant to appear at a Tribunal hearing to give evidence and present arguments relating to the issues arising in relation to the decision under review. The only exceptions to this requirement are:

    ·     If the Tribunal considers that it should decide the review in the applicant’s favour: s 425(2)(a) of the Act

    ·     If the applicant consents to the Tribunal deciding the review without the applicant appearing at a Tribunal hearing: s 425(2)(b) of the Act

    ·     If the applicant has been invited by the Tribunal under s 424 of the Act to give information and does not give the information before the time for giving the information has passed: s 425(2)(c) of the Act.

    ·     If the applicant has been invited by the Tribunal under s 424A of the Act to comment on or respond to information that would be a reason or part of the reason for affirming the decision under review, and has not commented on or responded to the information before the time for giving the comment or the response has passed: s 425(2)(c) of the Act.

14. Section 425(3) of the Act makes it clear that unless any exceptions to the obligation to invite the applicant to appear at a Tribunal hearing, then the applicant is required to be invited to appear at a Tribunal hearing. This obligation continues even if, as is the present case, the review application is doomed to fail because the applicant cannot meet the circumstances to be granted the visa.

15. The applicant, through his migration agent, commented and/or responded to the information under s 424A of the Act. With the obligation to invite the applicant to appear at a Tribunal hearing continuing, on 29 March 2023 the Tribunal invited the applicant to appear at a Tribunal hearing commencing at 12noon on 20 April 2023. As the applicant was offshore and would not be able to physically appear at a Tribunal hearing, the Tribunal indicated that it would contact the applicant on the telephone number provided to the Tribunal. The applicant was advised to provide the Tribunal with an alternative telephone number if the number was no longer correct.

16. On 30 March 2023 the migration agent wrote to the Tribunal in response to the hearing invitation as follows:

17. “Please be advised that the above Protection visa review applicant [name] is not contactable over his mobile and also stopped responding my email after responding once on 17 February 2023 and that's when he informed me that he has travelled to his home country Pakistan for his family reason. However, at the time of his deaparture from Australia, he did not have any return visa to Australia whereas it is a mendatory requirement for an onshore protection visa applicant that the applicant must be present in Australia at the time of decision of his protection visa application if otherwise he had a forwarding return visa to Australia to postpone his hearing.

18. However, as the AAT contacted me by email on 16 February 2023, I was desperately trying to contact him on his mobile and being failed, I tried through his available email address and he responded my email on 17 February 2023 stating that he has left Australia in July 2022 and ever since he never responded any of my email either.

19. In that circumstance, I have contacted the tribunal in a few occasions by email and updated his current location is Pakistan and the departmental information revealed that he doesnt have any kind of forwarding visa to return back to Australia.

20. I received the AAT's email on 29 March 2023 with regard to his hearing Scheduled on 20 April 2023.

21. Please find attached my previous email correspondence with the visa applicant as well as the Tribunal for consideration.

22. Although I have completed the hearing response form however there is no way I can appropriately complete the response form without the applicant's direction.

23. Finally, I would like to urge the Tribunal to kindly take appropriate measure to resolve this applicant's pending review application and thus oblige me thereby.”

24. Attached to the email was a completed ‘Response to hearing invitation’ form completed by the migration agent, indicating that the applicant would appear by telephone at the Tribunal hearing, although the annotation by the migration agent indicated that the applicant was not contactable by telephone. The migration agent also attached copies of correspondence from the Tribunal that the migration agent sent to the applicant, as well as an email from the applicant to the migration agent where the applicant confirmed he was in Pakistan. The migration agent also advised in the ‘Response to hearing invitation’ that the applicant has no return visa to travel to Australia meaning that the applicant could not be physically present at the Tribunal hearing.

25. On 20 April 2023 at 11:55am, 12 noon and 12:05pm the Tribunal contacted the applicant on the telephone number provided. All the calls were unsuccessful. As the applicant did not answer the Tribunal’s telephone call, he therefore failed to appear at the Tribunal hearing.

26. Where an applicant fails to appear at a Tribunal hearing, the Tribunal can utilise the powers under s 426A of the Act. In the present review, the Tribunal determined that the appropriate course was to make a decision on the review without taking any further action to allow or enable the applicant to appear at a Tribunal hearing: s 426A(1A)(a) of the Act. The Tribunal determined that this was the appropriate course because the review was futile. The applicant quite simply could not meet the requirements for the grant of the visa because at the time the Tribunal made a decision, the applicant was not in Australia.

    FINDINGS AND REASONS

27. For the following reasons, the Tribunal has decided to affirm the decision under review.

28. 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.

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

    DECISION

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

    Nathan Goetz
    Member