1727890 (Refugee)

[2017] AATA 2811

1727890 (Refugee) [2017] AATA 2811 (13 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1727890

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Mila Foster

DATE:13 December 2017

PLACE OF DECISION:  Sydney

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

Statement made on 13 December 2017 at 12:13pm

CATCHWORDS
Refugee – Protection visa – Malaysia – Review application previously decided – No longer a reviewable decision – No jurisdiction

LEGISLATION
Migration Act 1958, s 431
Migration Regulations 1994

CASES
Jayasinghe v MIEA [1997] 76 FCR 301
SZAQW v MIMA [2006] FCA 1332
SZASP v MIAC [2007] FCA 771
SZBCE v MIMA [2006] FMCA 1897
SZBWJ v MIAC [2008] FMCA 164
SZCKB v MIMA [2006] FMCA 804
SZIHQ v MIMA [2006] FMCA 496
SZIIG v MIAC [2008] FCA 886
SZIIV v MIMA [2006] FMCA 322
SZMRE v MIAC [2008] FMCA 1281

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. Before me is a review application lodged with the Tribunal online on 11 November 2017.

2. The applicant indicated in the review application that he was seeking review of a decision relating to a [bridging] visa, that he was notified of the decision on [a specified date in] April 2017 and that the Department (of Immigration and Border Protection) file number was [number]. However, the Department notification letter he uploaded with the review application concerns a decision made on [another date in] April 2017 to refuse to grant him a protection visa. The Department file number referred to in that letter is [number]. A search of the Department’s ISCE database reveals that the applicant has a current bridging visa and does not indicate he has been refused a bridging visa or had a bridging visa cancelled. I thus find that the applicant is seeking review of the decision made by a delegate of the Minister for Immigration on [the second date in] April 2017 to refuse him a protection visa.

3. An application for review of the decision made on [the second date in] April 2017 to refuse the applicant a protection visa was previously made to the Tribunal.[1] The applicant attended a hearing before the Tribunal and the Tribunal made a decision on that application on 31 July 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 Migration Act 1958, the decision is no longer a reviewable decision.[2] The Tribunal has no jurisdiction to review a delegate’s decision twice.[3] 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.

   [1] Tribunal file number 1709660.

   [2]  SZBWJ v MIAC [2008] FMCA 164 at [41] and the cases cited therein.

   [3] Jayasinghe v MIEA (1997) 76 FCR 301 and SZASP v MIAC [2007] FCA 771.

4. The proposition that the Tribunal cannot accept a further application for review of the same decision has been confirmed in a large number of migration cases involving repeat applications to the Tribunal and the Courts, relating to the same primary decision. Many of these applications have been found to be an abuse of process, instituted for the purpose of prolonging the applicant’s stay in Australia.[4] This is now the fourth repeat review application the applicant had lodged with the Tribunal seeking review of the decision made on [that date in] April 2017 to refuse to grant him a protection visa. He has already been notified in relation to two of those review applications that the Tribunal does not have jurisdiction to review the decision again[5] (the third is yet to be decided by the Tribunal, differently constituted).[6] It thus appears that in this case the repeated lodgement of review applications by the applicant is an abuse of process.

   [4] SZIIG v MIAC [2008] FCA 886 (Rares J, 8 May 2008) at [5] and [7]; SZASP v MIAC [2007] FCA 771 (Moore J, 24 May 2007); SZAQW v MIMA [2006] FCA 1332 (Jessup J, 14 September 2006); SZIHQ v MIMA [2006] FMCA 496 (Scarlett FM, 3 April 2006); SZIIV v MIMA [2006] FMCA 322 (Driver FM, 8 March 2006); SZCKB v MIMA [2006] FMCA 804 (Scarlett FM, 29 May 2006) and SZBCE v MIMA [2006] FMCA 1897 (Raphael FM, 13 December 2006); SZMRE v MIAC [2008] FMCA 1281 (Driver FM, 10 September 2008) at [12].

   [5] Tribunal file numbers 1719219 and 1722377.

   [6] Tribunal file number 1727338.

   DECISION

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

   Mila Foster
   Member