2119863 (Refugee)

[2024] AATA 1735

2119863 (Refugee) [2024] AATA 1735 (29 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2119863

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Stefanie Memmott

DATE:29 May 2024

PLACE OF DECISION:  Sydney

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

Statement made on 29 May 2024 at 10:00am

CATCHWORDS

REFUGEE – protection visa – Vietnam – applicant left Australia – no response to invitation to comment and decision made without taking further action and inviting applicant to appear – not necessary to consider substantive case – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 36(2), 65(1), 424A, 424C(2), 425(2)(c)

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 16 December 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 2 October 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) of the Act 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.

   Movement records indicate that the applicant is not in Australia. It appears that he left Australia [in] November 2023. The Tribunal wrote to the applicant advising that its records showed that he is not in Australia and therefore could not be granted a protection visa and inviting the applicant to comment on the information. This invitation, issued in accordance with s 424A of the Act, was dispatched to the last email notified to the Tribunal by the applicant in connection with the review. No response was received within the prescribed period.

5. The Tribunal has determined, in the circumstances, to proceed to make a decision without taking any further action to obtain the applicant’s views on the information and without inviting him to appear before it (per ss 424C(2) and 425(2)(c) of the Act).

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.

   Stefanie Memmott
   Member