2215293 (REFUGEE)

[2024] ARTA 119

2215293 (REFUGEE) [2024] ARTA 119 (19 NOVEMBER 2024)

DECISION AND  

REASONS FOR DECISION

Respondent:  Minister for Home Affairs

Tribunal Number:  2215293

Tribunal:General Member T H Baggiano

Place:Brisbane

Date:  19 November 2024

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

CATCHWORDS

REFUGEE – protection visa – China – applicant left Australia – no response to invitation to comment – 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 369 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF 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 14 October 2022 to refuse to grant the applicant a Protection (Class XA) Subclass 866 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 3 August 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 includes that the applicant for the visa is a non-citizen in Australia. This means that a person who is not in Australia at the time of the Tribunal’s decision does not meet the criteria for a protection visa.

5. Movement records indicate that the applicant is not in Australia. It appears that he left Australia [in] September 2024. The Tribunal wrote to the applicant on 4 November 2024 advising that its records showed that he is not in Australia and therefore could not meet the criteria for a protection visa and inviting the applicant to comment on the information. The Tribunal has received not received from the applicant a response to this invitation.

6. I am 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).

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

   DECISION

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

   T H Baggiano
   General Member