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austlii:cth/RRTA/1998/3290
appellant. The Tribunal affirms the decision not to grant a protection visa
1 cited instrument linked from this judgment.
The Refugee Review Tribunal affirmed a decision refusing a protection visa because the applicant was no longer in Australia. The Tribunal found that section 36(2) of the Migration Act 1958 requires an applicant to be physically present in Australia as a prerequisite for being granted a protection visa. Since the applicant had departed Australia in 1994 and not returned, this jurisdictional requirement was not satisfied. Consequently, the Tribunal did not need to consider whether the applicant had a genuine refugee claim under the Refugees Convention.
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Decision: The Tribunal affirms the decision not to grant a protection visa.
Catchwords: Applicant not in Australia at time of decision
The Applicant, who is a citizen of Nigeria, arrived in Australia in 1989. On 30 April 1991 the Applicant applied to the Department of Immigration and Multicultural Affairs for refugee status under the Migration Act 1958 (the Act). On 7 December 1993 a delegate of the Minister for Immigration refused the application and on 16 December 1993 the Applicant applied to the Tribunal for review of the decision. By operation of s.39 of the Migration Reform Act 1992, the refugee status application is deemed to be an application for a protection visa. For practical purposes the relevant legal criterion upon which the matter is to be determined remains the same.
No issue arises in this case as to the validity of the application for review or as to the Tribunal's jurisdiction to review the delegate's decision.
Section 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 to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol". The effect of this provision is that a protection visa may only be granted if an applicant is in Australia.
The Department's movements records indicate that the Applicant is not in Australia. He departed Australia in 1994 and has not returned. There is no information before the Tribunal as to the circumstances of the Applicant's departure, or whether he intends to return to Australia.
In these circumstances the Tribunal has proceeded to make its decision on the basis that the Applicant does not satisfy the requirements of s.36(2) of the Act, and cannot be granted a protection visa.
Having reached this conclusion, it is not necessary to consider whether the Applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.
The Tribunal affirms the decision not to grant a protection visa.
The Tribunal affirms the decision not to grant a protection visa