2209959 (Refugee)

[2024] AATA 1747

2209959 (Refugee) [2024] AATA 1747 (29 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2209959

COUNTRY OF REFERENCE:                   China

MEMBER:Lisa Lo Piccolo

DATE:29 May 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 29 May 2024 at 12:21pm

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

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

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 6 July 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 China, applied for the visa on 17 January 2018.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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.

2. 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.

3. Movement records indicate that the applicant is not in Australia. It appears that she left Australia [in] April 2024. The Tribunal wrote to the applicant advising that its records showed that she is not in Australia and therefore could not be granted a protection visa and inviting the applicant to comment on the information. No response was received.

4. In circumstances where the applicant was invited under s 424A of the Act to comment on or respond to information concerning his departure from Australia, and he did not give the comments or the response before the time for giving them had passed, the Tribunal has decided to exercise its discretion under s 424C(2) of the Act to make a decision on the review without taking any further action to obtain the applicant’s views on the information.

5. 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.

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

DECISION

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

Lisa Lo Piccolo
Member