1722015 (Refugee)

[2017] AATA 1914

1722015 (Refugee) [2017] AATA 1914 (11 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1722015

MEMBER:Lilly Mojsin

DATE:11 October 2017

PLACE OF DECISION:  Sydney

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

Statement made on 11 October 2017 at 11:25am

CATCHWORDS
Refugee – Protection visa – Malaysia – Valid review already made – No longer reviewable decision

LEGISLATION
Administrative Appeals Tribunal 1975, s 29
Migration Act 1958, ss 338, 347, 411, 412
Migration Regulations 1994, r 4.02

CASES
Jayasinghe v MIEA (1997) 76 FCR 301
SZASP v MIAC [2007] FCA 771
SZBWJ v MIAC [2008] FMCA 164

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. The Tribunal has jurisdiction to review a decision under the Migration Act 1958 (the Act) if an application is properly made under s.347 or s.412 of that Act, or in limited circumstances not relevant to this application, s.29 of the Administrative Appeals Tribunal Act 1975. Sections 338 and 411 of the Act and r.4.02(4) of the Migration Regulations 1994 set out the range of decisions that are reviewable in the Migration and Refugee Division of the Tribunal. They include decisions to refuse visas of various kinds, including a decision to refuse a protection visa. For the following reasons, the Tribunal has found that it has no jurisdiction in respect of this application.

2. An application was made to the Tribunal on 16 September 2017 for review of a decision which is indicated to be an XA 866 (protection visa) decision dated [in] August 2017. The corresponding Department file number listed on the review application form is [File number]. No documents were attached to the application form.

3. An application was also made to the Tribunal on 12 July 2017 for review of a decision which is indicated to be an XA 866 (protection visa) decision dated [in] June 2017. The corresponding Department file number listed on the review application form is [File number]. No documents were attached to the application form. On 28 August 2017 the Tribunal, differently constituted [1714920] found it had no jurisdiction to review a decision.

4. The Tribunal notes that the decision date referred to in the application for review, made on 16 September 2017, is in fact the date of the Tribunal’s earlier decision in respect of an application for review of the Delegate’s decision dated [in] March 2017. The Tribunal finds the applicant previously sought a review of the Delegates decision in this matter which was decided by the Tribunal, differently constituted [1704340], on 15 June 2017.

5. 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: SZBWJ v MIAC [2008] FMCA 164 at [41] and the cases cited therein. The Tribunal has no jurisdiction to review a delegate’s decision twice: Jayasinghe v MIEA (1997) 76 FCR 301 and SZASP v MIAC [2007] FCA 771.

6. As the delegate’s decision [has] already been the subject of a valid review by the Tribunal [1704340], it is no longer a reviewable decision. Accordingly, the Tribunal no longer has jurisdiction in relation to that decision.

   DECISION

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

   Lilly Mojsin
   Member