1723774 (Refugee)

[2017] AATA 1796

1723774 (Refugee) [2017] AATA 1796 (12 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1723774

MEMBER:Mireya Hyland

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 7:41pm

CATCHWORDS

Refugee – Protection visa – Malaysia – Review application for Bridging Visa A – No refusal decision – Tribunal cannot review protection refusal twice

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 29

Migration Act 1958, ss 338, 347, 411, 412

Migration Regulations 1994, Schedule 2, r 4.02(4)

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. This is an application for review lodged with the Tribunal on 3 October 2017 (the current review application). For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision

   Decision Under Review

2. In his current review application, under the heading ‘Decision to be reviewed’, the applicant, [identified] the decision for review as a ‘visa refusal’. Attached to the application was the Acknowledgement of a valid application for a Protection (subclass 866) visa and related Visa Application Summary. [The applicant] applied for a protection visa [in] April 2016 which was refused by the delegate [in] June 2016. There is no record of [the applicant] being refused any other visa. On 3 July 2016 [the applicant] sought review of the decision to refuse to grant him a protection visa by the Migration and Refugee Division of the Tribunal. On 5 September 2017, the Tribunal (differently constituted) affirmed the decision not to grant [the applicant] a protection visa. On 6 September 2017, [the applicant] again applied to the Tribunal to review the delegate’s decision to refuse to grant him a protection visa. On 19 September 2017, the Tribunal (differently constituted) found it did not have jurisdiction to consider the matter. On 25 September 2017, [the applicant] made another application for review to the Tribunal. The Tribunal (differently constituted) found it did not have jurisdiction to consider the matter on 29 September 2017.

3. In his current review application, under the heading ‘Decision to be reviewed’, [the applicant] picked the Class and Subclass ‘WA 010’, a Bridging Visa A, from the drop down menu. Attached to the current review application was the notification that he had been granted a Bridging Visa A in relation to his protection visa application [in] May 2016. His Bridging Visa A was valid until 28 calendar days after the decision was made on his protection application. As the Tribunal, differently constituted, decided [the applicant]’s application on 5 September 2017 his Bridging Visa A allowed him to remain lawfully in Australia until [October] 2017, the day on which [the applicant] lodge the current review application.

   Protection Visa

4. If [the applicant] is seeking review of the decision to refuse to grant him a protection visa the Tribunal has no jurisdiction to review that decision. 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 5 September 2017. 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.

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.

   Bridging Visa A

6. If [the applicant] is seeking review of his Bridging Visa A decision the Tribunal has no jurisdiction to review that decision. The Tribunal has jurisdiction to review a decision under the Act if an application is properly made under s.347 or s.412 of the 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 and cancel visas of various kinds and a range of sponsorship and nomination decisions. But the evidence before the Tribunal indicates that at the time the current review application was lodged the only relevant decision that had been made in relation to the Bridging Visa A was to grant [the applicant] the visa. A decision to grant a visa is not a reviewable decision. Nor is the cessation of that visa 28 days after the decision on his protection visa application was made a reviewable decision.

7. As there was no reviewable decision at the time the current review application was lodged it follows that the application was not properly made and the Tribunal does not have jurisdiction in relation to the Bridging Visa A.

   DECISION

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

   Mireya Hyland
   Member