2302805 (Refugee)

[2024] AATA 1841

2302805 (Refugee) [2024] AATA 1841 (31 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2302805

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Rupert Timms

DATE:31 May 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 31 May 2024 at 5:30pm

CATCHWORDS

REFUGEE – Protection visa – Vietnam – applicants not in Australia – outside of migration zone – decision under review affirmed

LEGISLATION

Migration Act 1958, 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 21 February 2023 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 Vietnam, applied for the visa on 27 October 2022.

2. For the following reasons, the Tribunal has decided to affirm the decision under review.

   CONSIDERATION OF CLAIMS AND EVIDENCE

3. Under s65(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, s36(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, and that he departed Australia on [date] September 2023.

6. On 1 May 2024, the Tribunal wrote to the applicant, advising that its records showed that he is not in Australia and that he therefore could not be granted a protection visa.  The Tribunal’s letter invited the applicant to comment on this information by 15 May 2024, and stated that if the Tribunal did not receive his comment by that date, the Tribunal might make a decision on his review application without taking any further action to obtain his views on this information. 

7. The applicant has not responded to the Tribunal’s letter, and the Department’s Movement Records system indicates that the applicant is still currently outside Australia.

8. 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 s36(2) and cannot be granted a protection visa.

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

   DECISION

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

    Rupert Timms
    Member