2217530 (Refugee)

[2024] AATA 1746

2217530 (Refugee) [2024] AATA 1746 (30 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2217530

COUNTRY OF REFERENCE:                   Philippines

MEMBER:Rosa Gagliardi

DATE:30 May 2024

PLACE OF DECISION:  Australian Capital Territory

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

CATCHWORDS
REFUGEE – protection visa – Philippines – 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 a decision made by a delegate of the Minister for Home Affairs on 25 November 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 Philippines (a matter the Tribunal accepts) applied for the visa on 3 September 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 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 he left Australia [in] February 2024. The Tribunal wrote to the applicant on 30 April 2024, advising that its records showed that he is not in Australia and therefore could not be granted a protection visa.  The applicant was also invited to comment on the information by 14 May 2024.  The applicant did not receive a response as at 14 May 2024 and as at time of writing the Tribunal has not received any correspondence from the applicant.

6. 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.

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.

   Rosa Gagliardi
   Member