2012553 (Refugee) [2024] ARTA 481 (18 December 2024)

Decision and			
Reasons for Decision 
Respondent:	Minister for Immigration and Multicultural Affairs 
Tribunal Number:	2012553
Tribunal:	General Member Danae Younger
Place:	Brisbane
Date:	18 December 2024
Decision:	The Tribunal affirms the decision not to grant the applicant a protection visa.

        Statement made on 18 December 2024 at 9:05am
CATCHWORDS
REFUGEE – protection visa – Malaysia – applicant left Australia – no response to invitation to comment – not necessary to consider substantive case – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36(2), 65(1), 

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.

Statement of reasons
application for review
1.  	This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs on 24 July 2015 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 16 April 2015. 
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 applicant is not in Australia, and specifically that he departed Australia [in] February 2023. 
6.  	On 10 December 2024, the Tribunal wrote to the applicant inviting him to comment on certain information which the Tribunal considers would, subject to the applicant’s comments, be the reason, or a part of the reason, for affirming the decision under review. The particulars of the information provided were: “That you have not been in Australia since [February] 2023.” That correspondence was sent to the applicant via his email address listed in his application for review filed with the Tribunal on 6 August 2020 (review application), and requested any response by 17 December 2024 including any request for an extension of time to respond.
7.  	Having reviewed the Tribunal file, the Tribunal is satisfied that the correspondence has not been returned to sender, and the applicant has not provided a response within the period requested. 
8.  	The Tribunal further notes that the applicant’s file documents provided by the Department of Immigration and Home Affairs, contains a “Withdrawal of a visa application” form dated 19 August 2020 (Department withdrawal form) which is apparently signed by the applicant. The reasons for withdrawal are to the effect that the applicant decided to return to Malaysia. 
9.  	The review application was filed in the Tribunal just prior to the date of the Department withdrawal form. The Tribunal proceedings have continued because the applicant did not file another withdrawal form in the Tribunal.
10.  	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.
11.  	Having reached this conclusion, it is not necessary to consider the applicant's substantive case for the grant of the visa.
DECISION
12.  	The Tribunal affirms the decision not to grant the applicant a protection visa.