1719475 (Refugee)

[2019] AATA 3343

1719475 (Refugee) [2019] AATA 3343 (4 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1719475

MEMBER:Jason Pennell

DATE:4 March 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal does not have jurisdiction in this matter.

Statement made on 4 March 2019 at 1.10pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – applicant no longer in Australia – no response to communication – no jurisdiction

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

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

1. This is an application for review of a decision of a delegate of the Minister for Immigration on 24 August 2017 to refuse to grant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The review application was lodged with the Tribunal on 25 August 2017. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.

3. An application for review of the same delegate’s decision was previously made to the Tribunal. The Tribunal made a decision on that application on 4 March 201 on the basis that the applicant had left Australia [in] May 2018. By a letter dated 13 December 2018 the tribunal advised the applicant that is records showed that he had not been in Australia since May 2018 and therefore could not be granted a protection visa. The Tribunal invited the applicant to comment or respond to its letter by 27 December 2018. The Tribunal did not receive any response to its letter. As such, the Tribunal was satisfied that the applicant was not in Australia and cannot be granted a protection visa as he does not satisfy s.36(2) of the Act. Accordingly, the Tribunal affirmed the decision of the delegate not to grant the applicant a protection visa.  

4. Where the Tribunal has received a valid application for review of a reviewable decision and carried out its statutory duty to review the decision under the Act, the decision is no longer a reviewable decision.[1] The Tribunal has no jurisdiction to review a delegate’s decision twice[2].

   [1] SZBWJ v MIAC [2008] FMCA 164 at [41]

   [2] Jayasinghe v MIEA (1997) 76 FCR 301; SZASP v MIAC [2007] FCA 771

5. As the delegate’s decision has already been the subject of a valid review by the Tribunal, it is no longer a reviewable decision. Accordingly, the Tribunal no longer has jurisdiction in relation to that decision.

   DECISION

6. The Tribunal does not have jurisdiction in this matter.

   Jason Pennell
   Member