2217804 (Refugee)

[2024] AATA 1748

2217804 (Refugee) [2024] AATA 1748 (29 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2217804

COUNTRY OF REFERENCE:                   United Kingdom

MEMBER:Rosa Gagliardi

DATE:29 May 2024

PLACE OF DECISION:  Australian Capital Territory

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

Statement made on 29 May 2024 at 2:27pm

CATCHWORDS

REFUGEE – protection visa – United Kingdom – 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 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 11 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 United Kingdom (a matter the Tribunal accepts) applied for the visa on 24 August 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 that the applicant is not in Australia. It appears that she left Australia [in] November 2023. The Tribunal wrote to the applicant on 30 April 2024, advising that its records showed that she was not in Australia and therefore could not be granted a protection visa, and invited the applicant to comment on the information.  The applicant was granted until 14 May 2024 to provide written comments or a response, but at time of writing the Tribunal has not received any response or communication 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