2202262 (Refugee)

[2024] AATA 1852

2202262 (Refugee) [2024] AATA 1852 (3 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2202262

COUNTRY OF REFERENCE:                   Thailand

MEMBER:Suseela Durvasula

DATE:3 June 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 03 June 2024 at 12:17pm

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

LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 424A

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 14 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 Thailand, applied for the visas on 29 March 2021.

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 the applicants are not in Australia. The first-named applicant left Australia [in] March 2023 and the second-named applicant departed Australia [in] September 2022.

6. The Tribunal wrote to the applicants under s 424A of the Act, advising that its records showed they are not in Australia and therefore could not be granted protections visa. The Tribunal invited the applicants to comment on the information. The applicants did not comment on, or respond to, this letter within the prescribed period. The Tribunal has therefore proceeded to make a decision based on the information before it, without taking further steps to obtain the applicants’ views on the information.

7. 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.

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

   DECISION

9. The Tribunal affirms the decision not to grant the applicants protection visas.

   Suseela Durvasula
   Member