2218558 (Refugee)

[2024] AATA 3230

2218558 (Refugee) [2024] AATA 3230 (18 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Alison Battisson

CASE NUMBER:  2218558

COUNTRY OF REFERENCE:                   Saudi Arabia

MEMBER:Sean Baker

DATE:18 July 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 18 July 2024 at 11:15am

CATCHWORDS
REFUGEE – protection visa – Saudi Arabia – applicant departed 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 14 December 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 Saudi Arabia, applied for the visa on 10 June 2022.

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] May 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.

6. The applicant’s representative responded stating that she could not get in contact with her client, that she requested that the tribunal provide the movement details of the applicant to her, summons the Department for any information relating to the applicant’s alleged departure from Australia, and not make a decision on jurisdiction for two months to allow the representative to investigate the whereabouts of the applicant because the representative held grave concerns for the applicant and whether she had come to harm.

7. Because the representative responded, the Tribunal invited the applicant to a hearing on 19 June 2024. The Tribunal provided the representative with the movement details of the applicant prior to the hearing.

8. The applicant did not appear at the scheduled time and date of the hearing. The representative however told me that she had received information from third parties that the applicant had been forcibly removed from Australia by her family and that the applicant may now be in prison or detention in Saudi Arabia. She noted that she was still seeking instruction from her client as well as any assistance from the Department or DFAT that they could offer to the applicant. Given that there was the possibility of further information I agreed to not make a decision on the case for a month in case she was able to contact her client to provide instructions or provide further relevant information. That time has now passed.

9. 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.

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

    
    

    DECISION

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

    Sean Baker
    Member