1723286 (Refugee)

[2017] AATA 1795

1723286 (Refugee) [2017] AATA 1795 (12 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1723286

MEMBER:Christine Cody

DATE:12 October 2017

PLACE OF DECISION:  Sydney

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

Statement made on 12 October 2017 at 1:51pm

CATCHWORDS

Refugee – Protection visa – Malaysia – Four previous review applications for protection refusal – Review application for bridging visa – No refusal decision – Protection visa decision already reviewed

LEGISLATION

Migration Act 1958, s 65

CASES

SZBWJ v MIAC [2008] FMCA 164

Jayasinghe v MIEA (1997) 76 FCR 301

SZASP v MIAC [2007] FCA 771

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 range of decisions, including decisions to refuse visas of various kinds such as a protection visa. [In] November 2016 a delegate of the Minister for Immigration made a decision to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act). The current review application was lodged with the Tribunal on 27 September 2017. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.

2. The current application for review lodged 27 September 2017 was made on a form entitled “Application for Review to the Migration and Refugee Division”. The application for review form states that the decision sought to be reviewed is a “visa refusal” dated [November] 2016, the visa type and subclass is said to be “WA 010”, and in response to the request for the “Department’s file number”, it states [file number].

3. Attached to the application for review form is a copy of the delegate’s Notification of Refusal of the protection visa application lodged [August] 2016, and the delegate’s decision record providing reasons for the refusal of the protection visa application, both dated [November] 2016. The letters have the file reference of [file number]. The letter notes that while the application was pending, the applicant was granted a bridging visa which will expire upon certain conditions. The applicant did not provide any evidence about the refusal to grant a bridging visa. 

4. There is no evidence before the Tribunal of a refusal of a sub-class WA 010 (bridging) visa for the applicant.  The only visa refusal decision of the Department for file [number] is a decision [in] November 2016 to refuse to grant the applicant a protection visa. The Tribunal finds that in lodging his current application for review, the applicant is seeking that the Tribunal review the delegate’s decision of [November] 2016 to refuse to grant him a protection visa.

5. The Tribunal notes however that, subsequent to the Department’s refusal to grant the applicant a protection visa [in] November 2016, the applicant lodged an application for review to the Tribunal on 30 November 2016, which led to a decision of the Tribunal (differently constituted) (hereafter referred to as the first Tribunal) on 4 May 2017 to affirm the delegate’s decision (file reference 1620302).

6. Subsequent to the first Tribunal’s decision to affirm the delegate’s decision to refuse to grant the applicant a protection visa, the applicant lodged a further application for review with the Tribunal (differently constituted) (hereafter referred to as the second Tribunal), on 8 May 2017. The second Tribunal issued a decision on 1 June 2017 (file reference1709901) that it did not have jurisdiction to consider the application for review, on the basis that the Tribunal had already made a decision on the applicant’s application to review the decision of the delegate.

7. Subsequent to the second Tribunal’s decision to affirm the delegate’s decision to refuse to grant the applicant a protection visa, the applicant lodged a further application for review with the Tribunal (differently constituted) (hereafter referred to as the third Tribunal), on 5 June 2017. The third Tribunal issued a decision on 10 July 2017 (file reference1711911) that it did not have jurisdiction to consider the application for review, on the basis that the Tribunal had already made a decision on the applicant’s application to review the decision of the delegate.

8. Subsequent to the third Tribunal’s decision to affirm the delegate’s decision to refuse to grant the applicant a protection visa, the applicant lodged a further application for review with the Tribunal (differently constituted) (hereafter referred to as the fourth Tribunal), on 24 August 2017. The fourth Tribunal issued a decision on 13 September 2017 (file reference1719216) that it did not have jurisdiction to consider the application for review, on the basis that the Tribunal had already made a decision on the applicant’s application to review the decision of the delegate.

9. The Tribunal now has before it a further application for review, and it has found that the applicant is seeking again a review of the delegate’s decision of [November] 2016 to refuse to grant the applicant a protection visa. The Tribunal finds that the applicant has lodged four previous applications for review of the same decision. 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 (or more): Jayasinghe v MIEA (1997) 76 FCR 301 and SZASP v MIAC [2007] FCA 771.

10. 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

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

    Christine Cody
    Member