2316500 (Refugee)

[2024] AATA 1754

2316500 (Refugee) [2024] AATA 1754 (29 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2316500

COUNTRY OF REFERENCE:                   China

MEMBER:Member Nathan Goetz

DATE:29 May 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 29 May 2024 at 12:18pm

CATCHWORDS

REFUGEE – protection visa – China – applicant left Australia – no response to invitation to comment and loss of right to hearing – not necessary to consider substantive case – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 36(2), 65(1), 424A, 424C(2), 425(2)(c), (3)

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 merits review of a decision made under s 65 of the Migration Act 1958 (Cth) (the Act) by a delegate of the Minister refusing to grant the applicant a protection visa.

   BACKGROUND

2. The applicant is a male citizen of China. On 30 October 2022 the applicant arrived in Australia holding a visitor visa. That visa expired on 30 January 2023.

3. On 21 November 2022 the applicant applied for the protection visa. On 12 October 2023 the delegate refused to grant the visa. On 13 October 2023 an application was made to the Tribunal for review of the decision.

4. [In] November 2023 the applicant departed Australia and has not returned.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. Under s 65(1) of the Act a visa may be granted only if the decision maker is satisfied that the prescribed criteria for the visa have been satisfied.

6. So far as is relevant to this review, 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.

7. On 1 May 2024 the Tribunal wrote to the applicant under s 424A of the Act and invited him to comment on or respond to information that would be the reason, or part of the reason, for affirming the decision under review. The information was that the applicant was not in Australia. The letter advised the applicant that this information was relevant because if he is not in Australia, he cannot meet the requirements for the grant of the visa. The Tribunal warned the applicant of the consequences of the Tribunal relying on the information because it would result in the decision under review being affirmed. The applicant was invited to comment on or respond to the information in writing by 15 March 2024.

8. The applicant did not do so.

9. As the applicant did not comment on or respond to the information the Tribunal raised with him via s 424A of the Act, the applicant lost the right to appear at a Tribunal hearing to give evidence and present arguments relating to the issues arising in relation to the decision under review: ss 424C1(2), 425(2)(c), 425(3) of the Act.

10. Accordingly, the Tribunal made a decision on the review without inviting the applicant to appear at a Tribunal hearing.

11. 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.

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

    DECISION

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

    Nathan Goetz
    Member