1710271 (Refugee) - [2018] AATA 2764

1710271 (Refugee) [2018] AATA 2764 (18 June 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1710271
COUNTRY OF REFERENCE:                  Turkey
MEMBER:Michael Judd
DATE:18 June 2018
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 18 June 2018 at 2:54pm

CATCHWORDS
Refugee – Protection visa – Turkey – Applicant left Australia

LEGISLATION
Migration Act 1958, ss 36, 65, 431

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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 20 April 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act). The applicant, who claims to be a citizen of Turkey, applied for the visa on 26 May 2016.
For the following reasons, the Tribunal has decided to affirm the decision under review.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
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.
Movement records indicate that the applicant is not in Australia. It appears that he left Australia on 7 February 2018. The Tribunal wrote to the applicant advising that its records showed that he is not in Australia and therefore could not be granted a protection visa and inviting the applicant to comment on the information. No response was received.
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.
Having reached this conclusion, it is not necessary to consider the applicant's substantive case for the grant of the visa.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Michael Judd
Member

Details

AGLC: 1710271 (Refugee) [2018] AATA 2764
Case: [2018] AATA 2764
Decision Date: 18 June 2018

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant from Turkey. The core of the dispute was whether the applicant met the eligibility criteria for the visa, specifically the requirement of being present in Australia.

The primary legal issue before the Tribunal was to determine whether the applicant satisfied the criterion stipulated in section 36(2) of the *Migration Act 1958* (Cth), which requires an applicant for a protection visa to be a non-citizen in Australia. This criterion is a prerequisite for the grant of such a visa under section 65(1) of the Act.

The Tribunal's reasoning focused on the applicant's physical presence in Australia. Movement records indicated that the applicant had departed Australia on 7 February 2018. The Tribunal notified the applicant of this information and invited comment, but no response was received. Consequently, the Tribunal was satisfied that the applicant was not in Australia, and therefore did not meet the essential criterion under section 36(2). As a result, the Tribunal found it unnecessary to assess the substantive grounds of the applicant's protection claim.

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

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has decided to affirm the decision under review.CONSIDERATION OF CLAIMS AND EVIDENCE 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. 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. Movement records indicate that the applicant is not in Australia. It appears that he left Australia on 7 February 2018. The Tribunal wrote to the applicant advising that its records showed that he is not in Australia and therefore could not be granted a protection visa and inviting the applicant to comment on the information. No response was received. 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. Having reached this conclusion, it is not necessary to consider the applicant's substantive case for the grant of the visa.DECISION The Tribunal affirms the decision not to grant the applicant a protection visa.Michael JuddMember

Decision

Reasons for decision

Having reached this conclusion, it is not necessary to consider the applicant's substantive case for the grant of the visa.DECISION The Tribunal affirms the decision not to grant the applicant a protection visa.Michael JuddMember

Ratio Decidendi

Legal Principle Established

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