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austlii:cth/RRTA/1998/1326
appellant. The Tribunal affirms the decision not to grant a protection visa.
The Refugee Review Tribunal affirmed a decision to refuse a protection visa because the applicant had left Australia before the Tribunal made its decision. Section 36(2) of the Migration Act 1958 requires that a protection visa applicant must be physically present in Australia. Since Departmental records showed the applicant had departed in 1998 and was not in Australia when the Tribunal decided the case in March 1998, the mandatory criterion was not satisfied. The Tribunal did not need to consider whether the applicant was a refugee because the basic eligibility requirement of being in Australia was not met.
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Decision: The Tribunal affirms the decision not to grant a protection visa.
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Catchwords: Applicant not in Australia at time of decision
The applicant, who is a citizen of Indonesia, arrived in Australia in 1996. In November 1996 he applied to the Department of Immigration and Multicultural Affairs for a protection visa under the Migration Act 1958 (the Act). In May 1997 a delegate of the Minister for Immigration and Multicultural Affairs refused to grant a protection visa and in June 1997 the applicant sought review of the delegate's decision by this Tribunal.
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 the applicant is in Australia.
The Department's movements records indicate that the applicant is not in Australia. It appears that he has been outside Australia since 1998. 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.