1716376 (Refugee) - [2021] AATA 1945

1716376 (Refugee) [2021] AATA 1945 (31 May 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1716376
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Sean Baker
DATE:31 May 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 31 May 2021 at 11.43am
CATCHWORDS
REFUGEE – protection visa – Malaysia – applicant departed Australia – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 36
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 24 July 2017 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 Malaysia, applied for the visa on 9 January 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.
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 [in] January 2021. 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. The applicant did not respond.
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.
Sean Baker
Member

Details

AGLC: 1716376 (Refugee) [2021] AATA 1945
Case: [2021] AATA 1945
Decision Date: 31 May 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant who had departed Australia. The core of the dispute was whether the applicant met the eligibility criteria for the visa, specifically the requirement of being physically present within Australia.

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 a non-citizen *in Australia*. The Tribunal also had to determine if the applicant's departure from Australia rendered them ineligible for the visa.

The Tribunal reasoned that a protection visa can only be granted if the applicant is in Australia, as mandated by section 36(2) of the Act. Movement records indicated that the applicant had left Australia in January 2021. 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 for a protection visa. As this fundamental requirement was not met, the Tribunal found it unnecessary to consider the substantive grounds of the applicant's claim for protection.

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 [in] January 2021. 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. The applicant did not respond. 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.Sean BakerMember

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.Sean BakerMember

Ratio Decidendi

Legal Principle Established

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