1716295 (Refugee) - [2018] AATA 514

1716295 (Refugee) [2018] AATA 514 (27 February 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1716295
COUNTRY OF REFERENCE:                  Taiwan
MEMBER:Ms Christine Long
DATE:27 February 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 27 February 2018 at 5:17pm

CATCHWORDS
Refugee – Protection Visa – Taiwan – Requirement for applicant to be in Australia – Applicant not in Australia
LEGISLATION
Migration Act 1958, ss 36(2), 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

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] July 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 Taiwan applied for the visa [in] February 2017.
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.
Relevantly 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 who is in Australia. This means that a protection visa may only be granted if the applicant is in Australia.
The Department of Immigration’s movement records indicate that the applicant is not in Australia and that she left Australia [in] September 2017.
On 6 November 2017 the Tribunal wrote to the applicant advising that relevant records showed that she is not in Australia and could not be granted a protection visa. The Tribunal invited the applicant to comment on that information on or before 20 November 2017. No response was received to that invitation. Further the applicant did not respond to a hearing invitation to her inviting her to attend a hearing before the Tribunal on 27 February 2018 at 1pm; she did not appear at the time and date for the hearing specified in the hearing invitation to her.
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.
Ms Christine Long
Member

Details

AGLC: 1716295 (Refugee) [2018] AATA 514
Case: [2018] AATA 514
Decision Date: 27 February 2018

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant from Taiwan. The dispute centred on whether the applicant met the threshold requirements for the grant of such a visa.

The primary legal issue before the Tribunal was 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 in Australia.

The Tribunal reasoned that section 65(1) of the Act mandates that a visa can only be granted if the prescribed criteria are met. It noted that section 36(2) specifically requires the applicant to be physically present in Australia. The Department of Immigration's records indicated the applicant had departed Australia in September 2017. The Tribunal had notified the applicant of this information and invited comment, but no response was received. Furthermore, the applicant failed to attend a scheduled hearing. Based on this evidence, the Tribunal was satisfied that the applicant was not in Australia, and therefore did not meet the criterion under section 36(2). Consequently, the Tribunal affirmed the decision not to grant the protection visa, finding it unnecessary to consider the substantive claims for protection.

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. Relevantly 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 who is in Australia. This means that a protection visa may only be granted if the applicant is in Australia. The Department of Immigration’s movement records indicate that the applicant is not in Australia and that she left Australia [in] September 2017. On 6 November 2017 the Tribunal wrote to the applicant advising that relevant records showed that she is not in Australia and could not be granted a protection visa. The Tribunal invited the applicant to comment on that information on or before 20 November 2017. No response was received to that invitation. Further the applicant did not respond to a hearing invitation to her inviting her to attend a hearing before the Tribunal on 27 February 2018 at 1pm; she did not appear at the time and date for the hearing specified in the hearing invitation to her. 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.Ms Christine LongMember

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.Ms Christine LongMember

Ratio Decidendi

Legal Principle Established

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