2201194 (Refugee)

[2024] AATA 2321

2201194 (Refugee) [2024] AATA 2321 (25 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2201194

COUNTRY OF REFERENCE:                   Indonesia

MEMBER:Rosa Gagliardi

DATE:25 June 2024

PLACE OF DECISION:  Australian Capital Territory

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

Statement made on 25 June 2024 at 4:03pm

CATCHWORDS

REFUGEE – Protection visa – Indonesia – applicants not in Australia – outside of migration zone – failed to attend hearing – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 36, 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 dependant.

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 January 2022 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 Indonesia (a matter the Tribunal accepts) applied for the visa on 19 October 2017.

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 he left Australia on [date] July 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 invited the applicant to comment on the information.

6. On 15 May 2024, the applicant wrote to the Tribunal stating he had attempted to obtain through his migration agent a Bridging visa so he could visit Singapore and South Korea.  The applicant asserted that the migration agent had told him he had a valid Bridging visa and could travel outside of Australia, and that is why he now finds himself in the circumstances he does.  The applicant also wrote that it had always been his intention to return to Australia.

7. The applicant has provided evidence of correspondence between himself and his former migration agent which shows that the migration agent attempted to obtain information from the applicant and confirmed that he had lodged a Bridging visa for the applicant.  The correspondence also notes that the firm representing the applicant stated it would not continue to represent the applicant as he had failed to pay his administration costs. 

8. The Tribunal invited the applicant to a hearing to have been scheduled on 25 March 2024 but on 12 June 2024, the applicant’s then representative wrote to the Tribunal to advise he was no longer acting for the applicant but had forwarded on to him the correspondence.  The Tribunal did not receive a response from the applicant to the hearing invitation nor did he provide the Tribunal with a new phone number on which he could be reached for the hearing.  The Tribunal finds that it has done everything reasonably possible to engage with the applicant to ensure he was given an opportunity to present his case at a hearing and therefore proceeds on the basis of the information before it.

9. The Tribunal is not in a position to find that the applicant was defrauded by the migration representatives.  If the applicant has probative evidence of this having occurred, he may wish to take it up with the regulatory body overseeing migration agents in Australia (Office of the Migration Agents Registration Authority).  It is beyond the remit of the Tribunal to investigate any claims of fraudulent conduct by a representative. 

10. Had the applicant attended a hearing the Tribunal would have explained to the applicant that s.36(2) is required to be applied without taking into account any discretionary considerations such as the reasons why the applicant is not in Australia. 

11. The Tribunal has sympathy for the applicant’s situation and understands he may have been under the misunderstanding that he was free to leave Australia and that he could return.  For whatever reason, this was not the case and the Tribunal does not have any discretion to waive the requirements of s.36(2) in favour of the applicant.

12. 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.

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

    DECISION

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

    Rosa Gagliardi
    Member