1824535 (Refugee) [2021] AATA 3999 (7 September 2021)

DECISION RECORD
DIVISION:	Migration & Refugee Division
CASE NUMBER:	1824535
HOME AFFAIRS REFERENCE(S):	BCC2018/2328082 
COUNTRY OF REFERENCE:	Malaysia
MEMBER:	Tamara Hamilton-Noy
DATE:	7 September 2021
PLACE OF DECISION:	Melbourne
DECISION:	The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 07 September 2021 at 11:49am

CATCHWORDS
REFUGEE – protection visa – Malaysia – applicant left Australia – no response to tribunal’s invitation to comment – 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 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 review of a decision made by a delegate of the Minister for Home Affairs on 4 August 2018 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 15 May 2018. 
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. It appears that he left Australia [in] May 2021. 
6.  	On 23 August 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.  No response was received from the applicant to the Tribunal’s correspondence. 
7.  	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.
8.  	Having reached this conclusion, it is not necessary to consider the applicant's substantive case for the grant of the visa.
DECISION
9.  	The Tribunal affirms the decision not to grant the applicant a protection visa.

Tamara Hamilton-Noy
Member