2307760 (Refugee)

[2024] AATA 1912

2307760 (Refugee) [2024] AATA 1912 (5 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2307760

COUNTRY OF REFERENCE:                   Thailand

MEMBER:Mary-Ann Cooper

DATE:5 June 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 05 June 2024 at 1:39pm

CATCHWORDS
REFUGEE – protection visa – Thailand – 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 decisions made by a delegate of the Minister for Home Affairs on 31 May 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 Thailand, applied for the visas on 2 January 2023.

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 the primary review applicant left Australia [in] March 2024 and the secondary applicant departed [in] August 2023.

6. The Tribunal wrote to the applicants advising that its records showed that they are not in Australia and therefore could not be granted protection visas and inviting them to comment on this information by 14 May 2024. It also advised them that if the Tribunal did not receive their 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 their views on the information. They was also advised that they would lose any entitlement they might otherwise have had under the Migration Act to appear before the Tribunal to give evidence and present arguments.

7. The correspondence was sent to the applicants’ email address as provided to the Tribunal and was not returned to sender. The applicants did not respond to the correspondence.

8. 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.

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

   DECISION

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

    Mary-Ann Cooper
    Member