2201267 (Refugee)

[2023] AATA 4668

2201267 (Refugee) [2023] AATA 4668 (25 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2201267

COUNTRY OF REFERENCE:                   Brazil

MEMBER:Sean Baker

DATE:25 October 2023

PLACE OF DECISION:  Sydney

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

Statement made on 25 October 2023 at 9:30am

CATCHWORDS

REFUGEE – protection visa – Brazil – applicant left Australia – 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 Brazil, applied for the visa on 18 July 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 applicant is not in Australia. It appears that he left Australia [in] February 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.

6. The applicant responded acknowledging that he was outside Australia, that he had waited a very long time for the visa to be processed and had missed his family and suffered mental health issues and had returned to Brazil.

7. The Tribunal set down a hearing for 25 October 2023 at 9.00am. The applicant responded to the hearing invite on 13 October 2023 stating that he wished to have the hearing cancelled, reiterating the above, and noting that he had been convinced to apply for a protection visa but on consulting an immigration lawyer had realised this visa may not be right for his circumstances.

8. The Tribunal has some sympathy for the situation in which the applicant found himself.

9. However, 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.

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

    DECISION

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

    Sean Baker
    Member