2305484 (Refugee)

[2024] AATA 2001

2305484 (Refugee) [2024] AATA 2001 (4 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2305484

COUNTRY OF REFERENCE:                   India

MEMBER:Hollie Kerwin

DATE:4 June 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 04 June 2024 at 2:21pm

CATCHWORDS
REFUGEE – protection visa – India – applicant left Australia – no response to invitation to comment – appropriate to make decision without inviting applicants to hearing – not necessary to consider substantive case – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36(2), 65(1), 424A

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 decisions made by a delegate of the Minister for Home Affairs on 29 March 2023 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act). The applicants, who claim to be citizens of India, applied for the visas on 29 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 applicants are not in Australia. It appears that they left Australia [in] February 2024. The Tribunal wrote to the applicants pursuant to s 424A of the Act advising that its records showed that they are not in Australia and therefore could not be granted protection visas and inviting the applicants to comment on the information by 14 May 2024. The applicants made no response.

6. As the applicants did not respond to the invitation under s 424A within the prescribed period, the Tribunal may make a decision on the review without inviting the applicants to a hearing. In the circumstances set out above, I consider it appropriate to make a decision on the review without inviting the applicants to a hearing.

7. The Tribunal is satisfied from the circumstances set out above that the applicants are not in Australia. Therefore, the applicants do not satisfy the requirements of s 36(2) and cannot be granted protection visas.

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

   DECISION

9. The Tribunal affirms the decision not to grant the applicants protection visas.

   Hollie Kerwin
   Member