2202053 (Refugee)

[2024] AATA 2069

2202053 (Refugee) [2024] AATA 2069 (28 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2202053

COUNTRY OF REFERENCE:                   Brazil

MEMBER:Amanda Goodier

DATE:28 May 2024

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the first and second named applicants protection visas.

The Tribunal does not have jurisdiction in relation to the third named applicant.

Statement made on 28 May 2024 at 4:00pm

CATCHWORDS
REFUGEE – protection visa – Brazil – applicant left Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), 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 decisions made by a delegate of the Minister for Home Affairs on 9 February 2022 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act). The applicants, who claim to be citizens of Brazil, applied for the visas on 24 April 2019.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   First named and second named applicants

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 applicants are not in Australia. It appears that they left Australia [in] October 2023. The Tribunal wrote to the applicants advising that its records showed that they are not in Australia and therefore could not be granted protection visas and inviting the applicants to comment on the information. The applicants did not respond to the letter.

6. The Tribunal is satisfied from the circumstances set out above that the applicants are not in Australia. Therefore, the applicants do not satisfy the requirements of s 36(2) and cannot be granted protection visas.

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

   Third named applicant

8. For the following reasons, the Tribunal has found that it has no jurisdiction in respect of the third named applicant.

9. The Tribunal has jurisdiction to review a decision under the Migration Act 1958 (Cth) (the Act) if an application is properly made under s 347 or s 412 of that Act, or in limited circumstances not relevant to this application, s 29 of the Administrative Appeals Tribunal Act 1975 (Cth). Sections 338 and 411 of the Act and reg 4.02(4) of the Migration Regulations 1994 (Cth) set out the range of decisions that are reviewable in the Migration and Refugee Division of the Tribunal. They include decisions to refuse and cancel visas of various kinds and a range of sponsorship and nomination decisions, but the evidence before the Tribunal indicates that at the time the review application was lodged, no relevant decision had been made.

10. As no reviewable decision had been made at the time the review application was lodged it follows that the application was not properly made, and the Tribunal does not have jurisdiction in this matter.

    DECISION

11. The Tribunal affirms the decision not to grant the first and second named applicants protection visas.

12. The Tribunal does not have jurisdiction in relation to the third named applicant.

    Amanda Goodier
    Member