2218860 (Refugee) - [2024] AATA 1998

2218860 (Refugee) [2024] AATA 1998 (30 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2218860
COUNTRY OF REFERENCE:                   United Kingdom
MEMBER:Melissa Haag
DATE:30 May 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 30 May 2024 at 2:23pm
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 2 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 citizen of United Kingdom, applied for the visa on 25 November 2021.
For the following reasons, the Tribunal has decided to affirm the decision under review.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
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.
Movement records indicate that the applicant is not in Australia. It appears that he left Australia [in] October 2023. The Tribunal wrote to the applicant advising that its records showed that he is not in Australia and therefore could not be granted a protection visa and inviting the applicant to comment on the information. No response was received.
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.
Having reached this conclusion, it is not necessary to consider the applicant's substantive case for the grant of the visa.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Melissa Haag
Member

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 2218860 (Refugee)

Details

AGLC: 2218860 (Refugee) [2024] AATA 1998
Case: [2024] AATA 1998
Decision Date: 30 May 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant who had departed Australia. The dispute centred on whether the applicant met the eligibility criteria for the visa, specifically the requirement of being physically present in Australia.

The primary legal issue before the Tribunal was whether the applicant satisfied the criterion under section 36(2) of the *Migration Act 1958* (Cth) that a protection visa applicant must be a non-citizen in Australia. This required the Tribunal to determine the applicant's location at the time of the decision.

The Tribunal reasoned that a protection visa can only be granted if the applicant is in Australia. Movement records indicated that the applicant had left Australia in October 2023. The Tribunal notified the applicant of this information and invited comment, but no response was received. Based on the available evidence and the lack of response, the Tribunal was satisfied that the applicant was not in Australia. Consequently, the applicant failed to meet the essential criterion under section 36(2) of the Act, rendering it unnecessary to consider the substantive grounds of the protection claim.

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

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has decided to affirm the decision under review.CONSIDERATION OF CLAIMS AND EVIDENCE 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. 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. Movement records indicate that the applicant is not in Australia. It appears that he left Australia [in] October 2023. The Tribunal wrote to the applicant advising that its records showed that he is not in Australia and therefore could not be granted a protection visa and inviting the applicant to comment on the information. No response was received. 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. Having reached this conclusion, it is not necessary to consider the applicant's substantive case for the grant of the visa.DECISION The Tribunal affirms the decision not to grant the applicant a protection visa.Melissa HaagMember

Decision

Reasons for decision

Having reached this conclusion, it is not necessary to consider the applicant's substantive case for the grant of the visa.DECISION The Tribunal affirms the decision not to grant the applicant a protection visa.Melissa HaagMember

Ratio Decidendi

Legal Principle Established

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