2213224 (Refugee)

[2024] AATA 2262

2213224 (Refugee) [2024] AATA 2262 (19 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2213224

COUNTRY OF REFERENCE:                   Laos, Peoples Democratic Rep

MEMBER:Sean Baker

DATE:19 June 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 19 June 2024 at 3:36pm

CATCHWORDS

REFUGEE – protection visa – Laos – applicant left Australia – education of children in home country – not necessary to consider substantive case – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 36(2), 65(1)

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 dependants.

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 29 August 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 Laos, Peoples Democratic Rep, applied for the visa on 9 September 2018.

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 she left Australia [in] November 2023. 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. The applicant responded, conceding they were outside Australia, and that she had to depart to see to the education of her daughters in Laos. She requested that her application be kept valid.

6. Because the applicant responded, an invitation to attend a hearing was provided. The applicant responded requesting the Tribunal take evidence from her spouse.

7. At the hearing the applicant conceded that she was in Laos, she said that she was there to look after her children. I explained the significance of this to her application. She asked if there was any way she could get back to Australia. I noted that she should seek appropriate advice about this matter.

8. 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.

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

   DECISION

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

    Sean Baker
    Member