1727388 (Refugee)

[2018] AATA 232

1727388 (Refugee) [2018] AATA 232 (30 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1727388

MEMBER:Christine Cody

DATE:30 January 2018

PLACE OF DECISION:  Sydney

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

Statement made on 30 January 2018 at 11:00am

CATCHWORDS
Refugee – Protection Visa – Malaysia – Requirement for a reviewable decision to exist – Decision reviewed previously

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] April 2017 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 6 November 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 6 November 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” [in] April 2017; the visa type and subclass is said to be “WA-100”. In response to the request for the “Department’s file number”, it states [File Number]. The applicant attached to the application for review form his identity documents, as well as a copy of the Notification of Refusal of the applicant’s application for refusal of a protection visa.

3. There is no evidence before the Tribunal of a refusal by the Department of a sub-class WA-100 visa for the applicant [in] April 2017. The only visa refusal decision of the Department for [File Number], is a decision [in] April 2017 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 [April] 2017 to refuse to grant him a protection visa.

4. The Tribunal notes however that, subsequent to the Department’s refusal to grant the applicant a protection visa [in] April  2017, the applicant lodged an application for review to the Tribunal which led to a decision of the Tribunal (differently constituted) on 31 July 2017, after the applicant attended a Tribunal hearing, to affirm the delegate’s decision (file reference 1709660).

5. Subsequent to that 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. On that occasion the Tribunal issued a decision on [in] September 2017 [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. The applicant then lodged a further application for review, and the Tribunal made a further decision that it did not have jurisdiction to consider the further application for [review].

6. 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 [April] 2017 to refuse to grant the applicant a protection visa. The Tribunal finds that the applicant has lodged three 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.

7. 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

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

   Christine Cody
   Member