2306110 (Refugee)

[2024] AATA 1858

2306110 (Refugee) [2024] AATA 1858 (5 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2306110

COUNTRY OF REFERENCE:                   Tonga

MEMBER:Mary-Ann Cooper

DATE:5 June 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 05 June 2024 at 9:31am

CATCHWORDS
REFUGEE – protection visa – Tonga – applicant left 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 28 March 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 Tonga, applied for the visa on 1 September 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] October 2023. The Tribunal wrote to the applicant, via her representative, advising that its records showed that she is not in Australia and therefore could not be granted a protection visa and inviting her to comment on the information by 14 May 2024.It also advised her that if the Tribunal did not receive her comments or response within the period allowed or as extended, it might make a decision on the review without taking any further action to obtain her views on the information. She was also advised that she would lose any entitlement she might otherwise have had under the Migration Act to appear before the Tribunal to give evidence and present arguments.

6. The correspondence was sent to the email address of the applicant’s representative as provided to the Tribunal and was not returned to sender. The applicant did not respond to the correspondence.

7. 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.

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

   DECISION

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

   Mary-Ann Cooper
   Member